WA Deceased Estate - Property Used by Business Co-owner

[glyn coppen]

My brother and I will inherit my step father's property once probate is finalised and the will is executed. we are both currently living in the house on the property. my brother owns a bird/pet supply business that is using part of the property for aviaries and bird breading.

My question is, can I, being future part owner of the property charge his business rent for the area taken up by the aviaries even though the will has not been executed, or would any rental charged go to the deceased estate? The space taken up by the aviaries is 300 sqm.

 

[Sarah J]

Hi Glyn,

The rental will go to the joint beneficiaries. Are you and your brother beneficiaries to the property in equal shares (i.e. tenants in common)? If so, and if the business is using up more than 50% of the property, then you are entitled to charge rent for the amount the business encroaches on your share of the property (the other 50% belongs to your brother and presumably, your brother will not be charging himself rent, though, he can if he wishes).

If you are both gifted the property as joint tenants, then the matter becomes a bit more complicated. This is because, under joint tenancy, each owner is entitled to possession of the whole property, and so, your brother will not need to pay rent for "your share" of the property as neither party has any "shares" in the property. What you will need to do this case is to execute a deed that changes the ownership from joint tenancy to tenants in common and stating clearly that each tenant will own 50% of the shares in the property.

Whether you and your brother is gifted the property as tenants in common or joint tenants depends on the wording used in the will. If the will mentions "shares" and "equally" then it will likely be interpreted as tenants in common. However, if the will gifts the property to you and your brother jointly, then this would suggest joint tenancy. Best to get a wills and probates lawyer to advise on this.