VIC Tenants in Common and Inheritance?

[John and Michael]

The 4 sons of our mother inherited the family home upon her death. 2 of the sons (my brothers) bought my brother and I for half the lowest valuation we got from a number of agents. My brothers and the wife of one (the other was single) inhabited the house with the brothers being tenants in common with one half share each. The married brother died and his wife (our sister-in-law) inherited his half of the house. They each made a will leaving their share to the other. 5 weeks prior to her death of bowel cancer, she changed her will, (with the same solicitor) leaving her share to her 2 children as their inheritance (our nephew and niece). My brother was not told of the change at the time.


As tenants in common, I realize that he does not have to sell his share of the property and he can stay there till he dies, but the niece and nephew both have their own homes and we are concerned that they could make things awkward, if for example, they wanted to let part of the house to their children or strangers. I understand that they themselves have free access, but can they approve any person to live within the property?

 

[Ivy]

Hi there,

Tenants in common are all entitled to the use and possession of the entire property. This includes the ability to invite others to live there. So yes, in theory, the niece and nephew could approve their children to live there unless that prevented your brother from exercising his right of possession.

However, if the property is rented, then all co-tenants are entitled to a share of the rents equivalent to their entitlement to the property. Additionally, co-tenants are liable for the costs of maintenance and improvements to the land equivalent to their share.

Co-tenants are also free to negotiate the way that payments are made for the costs of upkeep or payments of rent. So, if your brother is concerned that the niece and nephew may rent a part of the property to their children or strangers then he could consider making an agreement with them. For example, this could consist of him looking after the property, maintaining and paying for costs including rates in exchange for exclusive possession. Or it could include all of the above plus a nominal rent.