Brother evicted from home to enable sale
Judge rules it’s time to sell parents’ mortgaged Taupō house
Awoman and her husband went to court to have her brother evicted from a Taupō home previously owned by their parents so it could be sold after he mortgaged it to buy a restaurant and bar nearly 30 years ago.
Kim Mary Jean Burdett, with husband Shane Whitby Burdett, asked the High Court at Rotorua to rule that her brother Ricki Albert James Willis vacate the late parents’ home so they could put it on the market.
She said that around 1995, her brother had borrowed money to buy shares in a business: the Mole & Chicken Restaurant and Bar at the Hilltop Shopping Centre, Taharepa Rd, Taupō.
That was secured by an ANZ mortgage over the parent’s house.
The brother had acknowledged that was his responsibility. He had signed an acknowledgement that rescinded his interest in the house and confirmed he had no entitlement to any equity remaining in it after the ANZ mortgage was repaid, according to the decision from Associate Justice Clive Taylor.
The property was transferred to the Burdetts following the death of her father in 2013, the decision said.
The brother subsequently lived there but the sister told the court he was refusing to co-operate with the sale process or to vacate the house to enable it to be marketed for sale.
Although he had mentioned that he wanted to buy it, the Burdetts did not believe that he was capable of arranging that or getting finance, the decision said.
Nor did he make any appearance at a hearing last month.
The couple asked the judge to make an order for the sale of the property and division of the proceeds. They also sought an order that the brother vacate the property so it could be sold with vacant possession.
The couple’s lawyer, Thomas Mounsey, told Judge Taylor his clients, the Burdetts, live in Australia.
The brother had been living in the property, covering the mortgage and outgoings but not paying occupational rent.
The couple had previously tried to sell the house but were frustrated by him when last year he had lodged a caveat on the title “on the basis that Mr and Mrs Burdett hold a half share of the property for him on constructive trust”.
Mounsey said the brother had not filed any response to the proceedings so it is hard to evaluate whether he will suffer any hardship if the sale of the property and division of the proceeds occurs.
If the sale is made, he will have his liability under the mortgage discharged and receive some cash from the sale.
The lawyer also argued that it was of particular importance that in 2014 there was an agreement where the brother waived his equity in the property. But he had now changed his position, claiming a half share in the property — yet “since 2014 has effectively occupied the property rent-free”.
The judge was convinced by the couple’s arguments and ordered that the brother vacate the property and leave it in a clean and tidy state within 20 working days.
The couple could proceed with the sale but had to get a valuation and provide a copy of that to the brother.
After the sale, the proceeds were to be divided in two so that the brother’s share of the mortgage be deducted from his share of the proceeds, the decision said.