Stack v. Larsen, Record No. 1301-22-3 (Va. Ct. App. Sept. 26, 2023)
This is the second go-around in the appellate courts for these parties, fighting over property bequeathed in a will.
Facts. Erik Larsen bequeathed a tract of land to his adult children Pamela and Kirk, subject to the right of his second wife, Sandra “to reside in the home for so long as she is physically and mentally able to do so.” The Supreme Court of Virginia previously held that this meant that Sandra did not have a life estate in the property and the children had concurrent property rights that were only limited “to the extent that they interfered with Sandra’s ability to live on the property by herself.” The will also gave Sandra monthly rent payments from a cell tower lease on the property.
After the decision, Pamela planned to move into the second floor of the residence, relocating Sandra to the first floor. The children also directed the cell tower company to send rental payments to them, and that they would forward the payments to Sandra. Sandra sued the children for injunctive relief, and the children counterclaimed for their own declaratory and injunctive relief.
The trial court decided that partitioning the house was impractical and declined the children’s demand that Sandra pay them rent. The court agreed that the children could inspect the property for waste with 24 hours’ notice to Sandra. Finally, the trial court decided that the cell tower rent must be paid directly to Sandra.
Issues. (1) Whether the trial court erred in refusing to partition the house, requiring 24 hours’ notice before inspection, and refusing to allow the children to charge Sandra rent. (2) Whether the cell tower payments should be paid to the children and then transferred to Sandra.
Holdings. (1) No. The children’s rights are limited to the extent that they interfere with Sandra’s ability to live by herself. (2) No. The will devised the right to Sandra “to receive the monthly rental payments.”
Notes. (1) The children have concurrent rights to use and access the property, but the Supreme Court’s prior decision also held that she had the rights are limited to the extent they interfere with Sandra’s ability to live on the property by herself. Since dividing the house between two families would have required major renovations and restricted Sandra to the first floor, the trial court did not err in finding partition impractical. Similarly, the 24-hour notice rule was a proper balance of the parties’ concurrent rights. Finally, the trial court’s finding that the children could not exclude Sandra from the second floor based on Erik’s will did not entitle the children to rent because they had no right to exclude her in the first place.
(2) Erik devised to Sandra the right “to receive the monthly rental payments…for as long as she resides in our home.” The will had no requirement that the money be transferred through the children. The Court of Appeals notes that the trial court’s order commands the cell tower company to pay the rent directly to Sandra, but that the company was not joined as a party to the case. Even though that clause is ineffective against the company for that reason, the Court declines to set aside the provision because the children’s request to do so comes too late on appeal.