Trustee rights over property vs beneficiary tenant rights

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Latest post 04-23-2011 9:20 PM by Drew. 6 replies.
  • 04-21-2011 6:57 PM

    • majesty
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    Trustee rights over property vs beneficiary tenant rights

    CA Trust property has to be sold due to survivorship clause, however, after 8 months following the passing of the surviving Settlor, the property has not yet been listed for sale, and 2 adult grandchildren beneficiaries still reside in the property.

    Many of the household items were packed into boxes by the housekeeper several months ago, but left open for review by siblings.  The trustee (sibling) had his attorney send a letter to the other siblings suggesting that they all divide the personal property, and use the drawing of lots over contested items.  Thus, the siblings placed name labels on the personal property indicating items they were interested a few months ago, but the personal property remained in the house.     

    About a month ago, one of the grandchildren beneficiaries informed the trustee that the language in the trust amendment did not address the personal household property, thus, the original trust still divides the personal property with 50% to the siblings and 50% shared by the grandchildren. 
      

    Soon thereafter, the trustee threatened to lock out the 2 grandchildren’s from the garage attached to the house if they did not remove their car from the gargage, or would have the police tow their car, because he wanted to use the garage to store the household items inside the garage before listing the house.  The grandchildren refused to move the car and told the trustee that the garage was not large enough for the household items. 

    A few days later, trustee entered there home again with his key and had movers remove 90% the household furniture and items supposedly because the realtor friend to him that he could obtain a higher price for the property if it was empty and vacant.  The trust is now having to pay $400 a month for storage, and the trustee never informed the other grandchildren that they have a beneficial interest in the household personal property.   

    The 2 adult grandchildren have lived as lodgers with their grandparents for two decades, and after nearly everything was moved from the house, they were given a 30 day notice to quit from the trustee’s eviction attorney (instead of the required 60 day notice to quit).   They are upset because some of the items the movers took were previous given to them, and they were not given any notice having been asleep upstairs when the movers remove most of the household furnishing and other items.  

    According to the following civil code it appears that the trustee acts would give rise to the claim that the trustee desire to evict them is retaliatory, thus, illegal.   

    California Civil Code 789.3. (b) In addition, a landlord shall not, with intent to terminate
    the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his or her residence, willfully:
    (1) Prevent the tenant from gaining reasonable access to the
    property by changing the locks
    or using a boot lock or by any other
    similar method or device;
    (2) Remove outside doors or windows; or
    (3) Remove from the premises the tenant's personal property, the
    furnishings, or any other items without the prior written consent of
    the tenant.

     

    Questions:
    1) Should 2 grandchildren inform the eviction attorney, and the trust attorney that the 30 day notice is not valid, that a 60 day notice is required before the trustee’s eviction attorney files for the unlawful detainer?        

    2) Are the 2 grandchildren likely to avoid eviction due to the retaliatory acts of the trustee, and the fact that the trustee has never requested rent (since it would cost the trustee’s family more since his family is not paying fair market rates in 2 other trust properties). Also, would a judge or jury not evict since there is no irreparable financial harm to the trustee (or trust) since the 2 grandchildren will receive tens of thousand of dollars that could be used to pay rent, if necessary.  

  • 04-22-2011 10:22 AM In reply to

    Re: Trustee rights over property vs beneficiary tenant rights

    I'm not in CA.  My recollection is that you have asked several questions regarding a trust and real estate at this point.  This is all complex stuff and relying on anonymous repliers on the Internet is foolish...

    1. Doesn't matter.  The attorney is an attorney and he probably knows what he is doing.  If the attorney is responsible for the 30 day notice, the tenants should expect the lawyer to file an eviction after expiration of that notice.  If they think proper notice is 60 days, they can operate under that assumption.

    2. I doubt that statute gives rise to a continued right of possession.  It appears to just prohibit certain actions, and I'm guessing violation gives rise to some kind of liability, but NOT possessory rights.

    majesty:
    would a judge or jury not evict since there is no irreparable financial harm to the trustee (or trust) since the 2 grandchildren will receive tens of thousand of dollars that could be used to pay rent, if necessary.  

    Doesn't seem relevant.  Eviction is only about who has a legal right to possession of real property.  That's pretty much it.  The court doesn't have any ability to make the estate an involuntary creditor of the tenants based on a future ability to pay rents.

  • 04-22-2011 9:32 PM In reply to

    • majesty
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    Re: Trustee rights over property vs beneficiary tenant rights

    Ford:

    I'm not in CA.  My recollection is that you have asked several questions regarding a trust and real estate at this point.  This is all complex stuff and relying on anonymous repliers on the Internet is foolish...

    1. Doesn't matter.  The attorney is an attorney and he probably knows what he is doing.  If the attorney is responsible for the 30 day notice, the tenants should expect the lawyer to file an eviction after expiration of that notice.  If they think proper notice is 60 days, they can operate under that assumption.

    2. I doubt that statute gives rise to a continued right of possession.  It appears to just prohibit certain actions, and I'm guessing violation gives rise to some kind of liability, but NOT possessory rights.

    majesty:
    would a judge or jury not evict since there is no irreparable financial harm to the trustee (or trust) since the 2 grandchildren will receive tens of thousand of dollars that could be used to pay rent, if necessary.  

    Doesn't seem relevant.  Eviction is only about who has a legal right to possession of real property.  That's pretty much it.  The court doesn't have any ability to make the estate an involuntary creditor of the tenants based on a future ability to pay rents.

     



    RE Item #1 -- what do you mean by operate under that assumption?   If a letter is sent to the trustee & eviction attorney  informing them that a 60 day notice is required before the end of the 30 days period, wouldn't they have to start over by sending the 60 day notice?  Also, the 30 day notice has the printed name of the deceased Settlor as the trustee, instead of his son, the current trustee, i.e. They both have the same name, different middle initial. Apparently the attorney assumed that the trustee was the deceased Settlor.  If this was also brought to their attention before the end of 30 days, wouldn't they have to start over?  Or would the trustee and his attorney file for the unlawful detainer hoping there is no response by the tenants. 

    If so, wouldn't that be a potential problem for the trustee by acting in such a manner since the trustee knows that it highly likely that a petition to have him removed as the trustee was likely to occur (for many other reasons).     

    RE: Item #3 -  Under the CA "Relief from forfeiture of tenancy", the tenants could avoid being evicted if they can establish that the eviction causes severe hardship, and the landlord (trust) will not suffer irrreparable harm.  Causing 2 beneficiaries of the trust to become homeless is severe hardship, and since the Trustee never requested rent, or if the tentants agreed to pay reasonable rent to the court, wouldn't that avoid the eviction until the property is sold?

     

     

  • 04-23-2011 11:57 AM In reply to

    Re: Trustee rights over property vs beneficiary tenant rights

    majesty:
    RE Item #1 -- what do you mean by operate under that assumption?  

    If a landlord gives a tenant 30 days notice and the tenant think 60 days is required, you stand on what you believe to be your rights and you ignore the landlord.

     

    majesty:
    a letter is sent to the trustee & eviction attorney  informing them that a 60 day notice is required before the end of the 30 days period, wouldn't they have to start over by sending the 60 day notice?

    No, because the party asserting 60 days could be wrong.  The landlord is free to act pursuant to the 30 day notice and pursue eviction on day 31.  Lack of proper notice would be a defense the tenant could assert.

    majesty:
    Also, the 30 day notice has the printed name of the deceased Settlor as the trustee, instead of his son, the current trustee, i.e. They both have the same name, different middle initial. Apparently the attorney assumed that the trustee was the deceased Settlor.  If this was also brought to their attention before the end of 30 days, wouldn't they have to start over?

    That is likely just a clerical error, or an error without relief.  In a civil action you can be required to testify and, presumably, the tenant would have to testify that he knew the notice was from the landlord.

    majesty:
    If so, wouldn't that be a potential problem for the trustee by acting in such a manner since the trustee knows that it highly likely that a petition to have him removed as the trustee was likely to occur (for many other reasons).     

    The trustee is the landlord.  In most jurisdictions you can terminate a lease pursuant to its terms for any reason, or no reason.  The reason doesn't matter.

    majesty:
    Causing 2 beneficiaries of the trust to become homeless is severe hardship

    I'm not in CA.  If homelessness was a hardship, everybody would claim it.  The tenants are expected to look for another place to live.

    majesty:
    if the tentants agreed to pay reasonable rent to the court

    If they can afford a reasonable rent, then they can look for another place to live.

  • 04-23-2011 1:21 PM In reply to

    • Drew
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    Re: Trustee rights over property vs beneficiary tenant rights

    I fail to follow your logic

    The trustee may not be wise, but no law says he cannot selectively  apply a reasonable or even above market rents.

    The seems free to evict tenants as he deems best--why should tenant be entitled to free load on grandparents prior slack terms..if tenants want to cough up a high rent and seek to stave off eviction--have them put their money where their mouth is.

     



  • 04-23-2011 1:52 PM In reply to

    • majesty
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    Re: Trustee rights over property vs beneficiary tenant rights

    Drew:

    I fail to follow your logic

    The trustee may not be wise, but no law says he cannot selectively  apply a reasonable or even above market rents.

    The seems free to evict tenants as he deems best--why should tenant be entitled to free load on grandparents prior slack terms..if tenants want to cough up a high rent and seek to stave off eviction--have them put their money where their mouth is.

     

    The trustee has never requested rent and the 30 day notice does not reference any rent due.

     

  • 04-23-2011 9:20 PM In reply to

    • Drew
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    Re: Trustee rights over property vs beneficiary tenant rights

    So what!!! As a LL I have a right to say time is up!!



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