Property Subdivision and Family Dispute - What are My Rights?

[Sowraski]

My wife and my daughter (Married) bought a vacant land. Both of them paid initial 10% deposit and balance amount financed by the bank. The home loan is on all 4 names (My wife, My daughter, her husband & I). My house is given as security.

After settlement my daughter and husband were not in a position to pay the monthly mortgage amount as her husband lost the job. My daughter and her husband requested us to sell the land or do whatever it takes to release them from this commitment. They said they would be happy if they can get their deposit back.
Hence I agreed to take over and sell the land. I couldn’t sell the land, as it is hence I decided to put two houses on that land and sub divide and sell the land with plans and permit. I have spent considerable amount of money and time for architect and town planning to design and all the approvals.

Town planning took about 15 months and I am on the verge of proceeding to subdivision process, which expected to take 6 months. Meanwhile our relationship with our daughter and her husband went sour. Now they are demanding their share of profit from the sale process to sign the required documents.

How I go about it under property law?

 

[goody078]

I am really keen to find out where you stand because my grandfather is in a similar predicament which I am seeking advice for. It is so terrible that your daughter has turned on you like this and expects a hand out for all the hard work you have done. I hope you find a way to solve the issue.
My grandmother purchased a commercial property on behalf of my aunty who wanted a major anchor tenant to move out so she could move her boutique clothes business in. My grandmother passed away a week before the property was to settle consequently my grandfather's name was on the title with my aunty on the terms that she was to come up with half the money via finance. My grandfather paid cash. After my grandmother passed away the family decided that it was too risky to let my aunty move her small business into the building and risk losing a long term tenant. Consequently a huge rift between siblings occured and my aunty no longer speaks to my grandfather. My aunty has not paid a single cent towards the building or contributed in any way. My pop wants to sell the building now and my aunty has sent a solicitors letter stating she wants half the building and half of the rent. Mind you she didn't state that she wants to pay any of the expenses incurred over the past 6 years. I feel terrible for my grandfather and know my grandmother would be turning in her grave.

Any advice would be great!!

 

[James D. Ford - Solicitor]

Hi Sowraski

With hindsight you needed to have a co-ownership agreement in place before you all proceeded to purchase the property.

You could attempt to enforce the verbal agreement "we would just be happy to get our deposit back", however the onus of proof would rest with you and the cost of legal proceedings would be expensive –– with no guarantee you would be successful.

For your information –– You are able to sell the property without the signature of the other co-owners. It is complicated, but there is a process that can be followed which will allow the property to be sold, so that the property is not held to ransom by the other co-owners.

With respect to sharing the profits, I am afraid the news is not likely to be good. Under the legislation in Qld (for example), when $$ are received from the sale of the property, co-owners must account to each other for the expenses and profits associated with the property. If there is no agreement, it can only be assumed that all parties are liable to account for, and take the benefit of any profit on sale... in the percentage share they hold the property.

In order to be more precise with my response, please advise where the property is located.

Given the above, my advice is that you need to consider taking the following actions:

1. ensure that your salary/wages as the co-ordinator and project manager of the project are fully accounted for and paid to you at the full $$ value of your time (including Super and Leave Entitlements);
2. establish a loan agreement for all the funds you have provided to the project (establishing a defendable interest rate); and
3. ensure the loan is repaid, plus interest, and all other costs (including any GST liability from sale - be careful with regard to GST! Did you use the margin scheme for your project ?) at settlement, prior to any distribution of profits to co-owners.

Kind regards, James

 

[James D. Ford - Solicitor]

Sowraski, the matter will only be able to be resolved via a settlement agreement, or via the Courts.

The outcome of the matter will turn on the evidence, and will require statutory declarations from everyone that was aware of the verbal agreement as to what was supposed to happen (that is, we would be happy just to get our deposit back).. which would provide the required evidence to show that if they are allowed to succeed in their claim for $$, they would be "unjustly enriched".

Kind regards, James