Trustee Seeks to Collect Occupation Rent From Brother Who Lived in Deceased Mother’s Home

written on behalf of Feigenbaum Law

An unfortunate reality of estate administration is that families can quickly become involved in disputes leading to litigation. Despite proper estate planning, disagreements over what happens to family property can still lead to impasses that require the court’s assistance to resolve. For many people, the most valuable piece of property they own is their home. Therefore, the home can become a sticking point between loved ones following an individual’s passing.

This blog post will review a recent decision from the Ontario Superior Court of Justice, which shows that even amongst family members, it is important to respect someone’s will, as a failure to do so could lead to financial penalties.

Son continues to live in mother’s house which is left to daughter

In Korsch v. Hildebrandt, the applicant, “EK”, was the daughter of “GH” and was also appointed as the trustee of GH’s estate. EK and her brother, “BH”, were GH’s only children. At the time of her death, GH was not married, however, she had a will in place appointing EK as her trustee and sole beneficiary of her estate. The will specifically stated that BH was not to receive anything from the estate, given that GH had already provided money to BH before her passing.

GH passed away on March 7, 2019. At the time, GH lived in her Toronto-area home with BH, his wife and his daughter. After GH’s passing, EK became the sole owner of the home.

Approximately two months following GH’s death, EK served notice on her brother and his family to vacate the property so she could sell it and realize her inheritance. She told the Court BH and his family refused this request. EK commenced an action to force BH to move, however, a number of adjournments occurred, leading to a four-year gap between the request being made and the matter being heard. BH sought a further adjournment but the Court found that it would not be appropriate, noting that BH waited two months after the previous adjournment to hire new counsel rather than doing so immediately.

Son fails to provide evidence to support his claim that the home has increased in value

Up to December 2022, EK only requested that BH and his family vacate the home and allow EK to recover property inside of it. During this time, BH did not file any responding materials evidence about investments he and his family made into the property. However, on December 16, 2022, EK told the Court she wished to amend her application. Justice Dennison acknowledged that BH was evading service and her Honour granted service by email.

BH maintained his position that he had expended money on the property and, as a result, the home’s value had increased in the four years since GH’s death. Again, the Court could not determine if this was the case as no evidence of expenditures were provided by BH. The Court added that BH should cover day-to-day costs associated with living on the property in any event.

Request for property vacancy turns into claim for reimbursement for unjust enrichment

The Court then turned its analysis to EK’s claim for occupation rent based on BH’s unjust enrichment. The Court stated that occupation rent is a concept that is more widely known in the context of family law or commercial property. Occupation rent may be owed when someone occupies a property and, in doing so, prevents another party with an interest in the property from occupying it. The Court referenced the decision of Dagarsho Holdings Ltd. v. Bluestone, in which a mother was found to be entitled to occupation rent from her adult son after the Court determined that the son had been trespassing on the property and was the recipient of unjust enrichment. In determining how much the son should pay in damages, the Court looked at what the actual market rent would have been and subtracted expenses paid by the son.

In this case, the Court was satisfied that BH and his family were unjustly enriched by occupying the property after being asked to leave, adding that they had not paid any property tax, insurance, and many of the utilities. During this time, EK was denied use of the property, which she could have rented or sold. The Court found there was no legal reason for BH to continue to occupy the property after EK asked him to leave. The Court held that an appropriate remedy would be for BH to pay occupation rent to EK.

Court orders BH to pay occupation rent and deliver vacant possession of the home

EK provided the Court with an affidavit from a real estate agent who provided his opinion of the monthly rent value for the property from 2019-2022, the years during which BH occupied the home. BH argued that the real estate agent was not an expert, and while the Court agreed, it noted that it was able to make its own determinations based on the data that the real estate agent used in arriving at his opinion.

The Court set a monthly rate that reflected how the rent might change year-over-year. Ultimately, the Court ordered that BH was responsible for paying EK $67,300 in occupation rent for the period of April 1, 2020 to April 30, 2023. The Court also held that BH was required to deliver vacant possession of the property on or before April 30, 2023.

The Wills & Estates Lawyers at Feigenbaum Consulting Help Clients Work Through Estate Administration and Estate Disputes

The estate law team at Feigenbaum Consulting, led by Mark Feigenbaum, has helped clients navigate the emotionally and financially complex world of estate litigation. Our lawyers work to ensure that our clients understand the legal issues at hand and also understand their options when working to obtain the best possible resolution. We also help clients plan ahead and mitigate legal and financial risks by providing comprehensive estate planning services. To schedule a confidential consultation with one of our team members, please do not hesitate to get in touch with us online or call us at (416) 468-7298

.