Adjustment between Occupant and Legal personal representative


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John Angius and his estranged wife co-owned a residence at her death in 2012. In 2015 the Supreme Court made consent orders for the sale of the residence. The orders noted Mr Angius’s agreement to vacate the residence within 28 days. It was only after further proceedings that he vacated the premises in 2017. In still further proceedings, various related issues arose for decision. Mr Angius sought $41,471 from the estate as 50 per cent of the repairs maintenance and improvements he’d undertaken to the residence since Laura’s death. The Court found that $6,589 was owed on this basis and a further $4,260 was due for 50 per cent of the council rates, water rates and insurance premium for the years 2012 to 2016 (Angius v Salier [2019] NSWSC 184).

He had spent $55,738 on the funeral and $385,000 on a 12 person vault in which the deceased was buried. The Court determined that the estate was liable for ‘the reasonable cost of a reasonable headstone’. The estate was liable for the funeral and one twelfth of the cost of the vault.

The administrator sought mesne profits at half market rent for his occupation of the residence from the date of death to the date he vacated the residence. The Court noted that the ‘usual measure of mesne profits is the market rent for the premises which the trespassor should have paid for the period of its occupation. It will not depend on whether the person entitled to possession would have been able or willing to let the premises to someone else during the relevant period’.

As to the position of co-owners, the Court stated that ‘the rights of one co-owner against another co-owner of real property, when one has been in occupation and the other has not, include the payment of an occupation fee by the co-owner in possession. However, this is only where the other co-owner has been excluded from occupation or the owner in occupation claims an allowance in respect of improvements’, as Mr Angius had done. The Court concluded that he had an implied licence to occupy the residence until 2015 because his occupation was with the apparent acquiescence or implied consent of the person entitled to possession.

Mesne profits were awarded for the period from 2015 to 2017. The amount owed by the estate to Mr Angius was then set off against the amount he owed the estate.

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