what's the law?
Family wants freeloading cousin out
My parents live in a duplex with six other family members, one of them being a cousin they are trying to take to court to probate his share of the house. My cousin's parents owned one-third of the home but are now deceased. They did not prepare a will nor transfer his name on the deed. My parents pay for the utility bills and upkeep of the house. My cousin owes $3,000 in utilities. He has never paid his share of taxes. The home is in need of repairs. We would like assistance in transferring my cousin's share to my parents and removing him from the house due to his inability to pay utilities, taxes and upkeep. Where can I find help for them?
Answer: How your cousin's share can be transferred depends on the type of ownership your parents had with your cousin's parents. If the property was held as joint tenants, then upon the death of your cousin's parents, their share of the property would have been split among the remaining owners. If this is the case, he can be removed after 45 days' notice through an eviction.
If the property was held as tenants-in-common, upon your cousin's parents' death their share would pass to your cousin despite not having a will. In this case, your parents could take him to court to pay his share of the property taxes, upkeep and utilities under a theory of unjust enrichment. Your parents would need to show the actual costs they have paid, and the statute of limitations would limit collection of expenses to the last six years. If they proved that he owed that money, a court would most likely only order him to pay his share and not sign over his interest in the property. If the total amount is less than $3,500, they can file in small claims court where they would not need an attorney.
Your parents could also force a sale through a partition action, but they would have to buy out your cousin, possibly less the benefit he received. For a partition sale, your parents would need an attorney.
The Hawaii State Bar Association runs a lawyer's referral service at 537-9140.
Legal Aid Society of Hawaii operates statewide. Practice areas include housing, public benefits, consumer and family law, but not criminal law. Call 536-4302. Submit questions by e-mail to firstname.lastname@example.org
or by mail to Legal Aid Q&A, 924 Bethel St., Honolulu, HI 96813.