Hire your own attorney when sharing property with family
Jim Caswell’s generous gift to his daughter cost him thousands of dollars and led to his arrest.
How could a good deed go so wrong?
Let’s start with the good deed. In 2002, Caswell’s daughter, Joyce Woods, was living in Colorado with her husband Bill. They wanted to move back here, and Caswell, along with his wife Kathleen, wanted to help out. They gifted their daughter two lots on Kearsley Street in Lake Township so they could build a new home. The lots were located directly behind the Caswell home which fronted Cramer Street.
So far so good. The home was built and the Caswells were looking forward to getting reacquainted with their daughter, who was 56 at the time. But, it was not to be and their inability to share is a cautionary tale to others considering a legal document called a life estate.
The Caswells deeded over the two lots on condition Jim Caswell would have access to a small barn and a garage located on the lots. He used these buildings for storage and to house his wood shop. An agreement was executed giving the Caswells “nonexclusive right to use, occupy and possess the two buildings” for their lifetimes. When they passed away, the buildings would become the property of Bill and Joyce Woods.
Caswell believed this life estate would give him total control of the buildings. The Woods didn’t see it that way. Note the words “nonexclusive right to use”.
At first, the two families got along and shared the garage and barn then a series of disputes arose. The relationship deteriorated to the point that the Lake Township Police were called by either party at least seven times in 17 months to report indiscretions perpetrated by the other party. Caswell was charged with criminal damaging for scratching his daughter’s car by putting a ladder on it, criminal trespassing for shoveling snow in front of the garage and disorderly conduct for jacking up Bill Woods’ car and removing lug nuts. On June 12 he was charged with slapping the arm of a police officer, a fourth-degree felony.
Rebecca West-Estell, Caswell’s attorney, said some of these charges are bogus.
“The problem Mr. Caswell is running into is the law enforcement community will not enforce his rights,” she said. They think it (the life estate) is dumb so they don’t enforce it.”
Richard Koehn, an Oregon attorney, reviewed the life estate agreement for The Press. He called it a “terrible agreement” and one that is “questionably enforceable.” He said the term “nonexclusive right to use” would allow both parties to use the driveway and garage as either one saw fit and that the Woods could transfer that right to someone else should they decide to move and rent, which they did.
The Woods took their case to Wood County Common Pleas Court in 2011. On February 11, Judge Robert Pollex found that both parties breached the original agreement and that neither could share. He modified the agreement to grant the Woods exclusive use of the barn and the Caswells exclusive use of the garage. He ordered that the Woods could not block the driveway to the garage.
Despite being armed with this new document, Caswell said the Woods and the tenants they later rented to still interfered with his right to use the driveway and garage. He says his attempts to exercise those rights by documenting cars blocking the drive, clearing snow from the front of the garage and trying to get the police to enforce his rights resulted in his arrests and a charge of disorderly conduct.
Caswell, 84, is a retired teacher. He talks loudly and is animated with his gestures. His mannerisms can lead some to misunderstand his intentions. His attorney says, “The problem Mr. Caswell is running into now is that he’s so frustrated that whenever he encounters the police he is less cooperative than they would like him to be…he ends up on the short end of the stick and that’s frustrating for him because some of those times he wasn’t doing anything wrong….It’s been this way for almost two years now.”
Mark Hummer, Lake Township Police Chief, agrees with Caswell’s attorney, to a point. “We were caught in the middle of this. It took us a little off guard when the property disputes first started. Mr. Caswell is very intelligent but I don’t think this is one of those situations where you can fight an emotional argument with logic… In my opinion you could look at it (the life estate agreement) two ways. It was either total access on that driveway and total control of that property, or a lifetime estate or easement to access that garage…It’s almost set up for failure if the parties don’t get along.”
Chief Hummer also holds a real estate license and is a commercial property manager. This is the first life estate he has seen. However, a life estate is a common way to transfer property while retaining use of that property. Koehn said it is typically used when an elderly parent transfers a home to an heir but keeps the right to live in that home until time of death.
Koehn says Caswell’s troubles started with the poorly-worded agreement and the clause “nonexclusive right to use.”
The attorney who wrote the agreement represented both parties and was brought to the table by the Woods. This is the cautionary note to those who are considering a life estate with adult children—hire your own attorney.
Caswell wishes he would have done that. Nevertheless, he still feels wronged. He said, “I’m fighting for my civil rights. Lake Township won’t give me my civil rights. That’s my property and, damn it, I’m entitled to protection for it. I’m entitled to use my property as I see fit.”
Attempts were made by phone and email to contact Bill and Joyce Woods and the attorney who wrote the original agreement. All failed
The Woods have moved to Nevada and the house is currently vacant. They cannot sell the property without Caswell’s permission, but they will receive clear title upon Caswell’s death.
Meanwhile, Caswell will keep fighting for what he believes are his civil rights. His fight is a lonely one. His wife of 66 years, Kathleen, passed away in 2011.
“She was my life,” Caswell says. He admits this ongoing dispute created a lot of stress in her last year of life and continues to create stress in his.
“So far, it’s made me loud and mouthy and I got no one to vent on.”