brother trying to sell our jointly owned house
I live in a house in Brisbane which was left to my brother & me by our deceased parents. Mums will hasn't yet been finalised, and the house is not yet in our names, but Im told we both have power of attorney. My brother , who lives elsewhere, is eager to sell, and Im not. He tells me he can legally sell this house from under my feet, even without my co-authorisation. Is this true?? Can he do this???
Hi there. A power of attorney is a formal document giving another person the authority to make personal or financial decisions your behalf. If you and your brother were appointed as attorneys for your mother, this means you were able to make certain decisions for her. There are different types of powers of attorney, but none of them continue after the person appointing the attorney has died. When this person passes away, the power of attorney ends and the terms of the will take over. This means that you and your brother are no longer attorneys for your mother’s affairs.
You said that your mother’s will is still being finalised. The executor of her will is responsible for collecting her assets, settling any outstanding debts, and distributing her remaining estate according to her wishes. If ownership of the house was left to you and your brother under the will, once the will is settled and the house is in both of your names, you will be co-owners of the house.
Assuming the above is correct, if your brother wants to sell the property, he will ordinarily need your consent. This is because you are also a legal owner of the house and your signature would be required on any and all transfer documents used to sell the house. If you do not want to sell the house, you have the option of buying your brother’s share of the house off him. You would then be the sole owner of the property.
If your brother wants to sell the house but you do not have enough money to buy his share, your brother can apply to a court and ask for a statutory trustee to be appointed to sell the house, regardless of whether you consent or not. This rule is set out in the Property Law Act 1974 (Qld) and is designed to help co-owners, such as family members, who disagree on what to do with a property. A statutory trustee is a third party, usually a solicitor or an accountant, who is in charge of selling the house and dividing the proceeds between the co-owners. As the co-owner who does not want to sell, you have the option of opposing your brother’s application in court, but there are limited grounds on which a person can object to an application.
Suggested way forward
Dealing with family property can be difficult, especially when the parties want different things. Although your brother no longer has power of attorney over your mother’s property, once the will is finalised and you become co-owners of the house, he will have the option of forcing the sale through a court order. You should speak to a lawyer who can advise you of your legal rights and how best to enforce them. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.
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