I have been handed a matter whereby the client purchased a property in 1992 with their then partner (not married) and held as tenants in common they had three children (now adults) and the partner then left the family home shortly aferwards and kept very little contact (and no child maintenance was paid).
The partner went on to marry and did not have any further children. They died intestate in 2012.
My client now wants to re mortgage the property but cannot because the deceased’s name and Form A restriction remain on the title.
My client has been in contact with their ex partner’s spouse and they want nothing to do with obtaining letters of administration and have (verbally) stated that they want no money from the house.
I am struggling to know how to proceed. My client doesn’t want me to contact the spouse to ask them to formally renounce so that their children can make an application and we also have no way of finding out what was in the deceased partner’s estate in 2012. It could be insolvent for all they know.
What would you do? A Limited Grant to allow the remortgage for the time being? But what then? Surely they would then be expected to obtain a full grant. Could this be counted as intermeddling and leave them open to claims against the estate anyway?
Would the Land Registry remove the restriction without a Grant? What evidence would they need?
I have also looked at s118 Senior Courts Act 1980 - an application for a Grant to deal with just part of the estate- any idea how one goes about this and whether it would apply in this situation?
On the death of the partner, your client was left as sole legal owner of the property. You can get the partner’s name removed from the title simply by filing the death certificate with this form: Deceased joint proprietor (DJP) - GOV.UK.
Then your client can simply appoint a new co-trustee/registered proprietor in order to overreach the Form A restriction, whether to sell or re-mortgage. There is no need to involve the estate of the deceased partner in the legal title. Have a look at Practice guide 6: devolution on the death of a registered proprietor - GOV.UK too.
BUT your client and the new appointee will be trustees for your client and the late partner’s estate and must account for the proceeds accordingly, and it does not sound like it would be safe to rely just on the ex-partner’s spouse say-so, particularly if the spouse does not have a grant in the ex-partner’s estate.
I hope this helps.
Thank you very much - I was aware of the appointment of a second trustee but I wrongly believed that would only apply on the sale to a bona fide purchaser.
I do worry that this client is just kicking the problem down the road.
What can my client do about the potential beneficial interest? How can this be decided/ rectified? if it makes any difference the deceased only lived in the property for 8 months and made no payments to the house or towards the care of the children.
Have you got the TR1 on the purchase? That is likely to record the parties’ shares. It is difficult, if not completely impossible, to change these subsequently. There may then be grounds for equitable accounting on sale, which could adjust the distribution of proceeds.
<On the death of the partner, your client was left as sole legal owner of the property. You can get the partner’s name removed from the title simply by filing the death certificate with this form: [Deceased joint proprietor (DJP) - GOV.UK ]>
That is very interesting. I thought that you could only do this in a situation of joint tenants, but not when the property is held as tenants in common. I would really appreciate if you are able to clarify this please.
Thank you so much.
Jonny Chody
Dear Jonny,
There is no such thing as a tenancy in common of land at law, only joint tenancy, and the register only records the legal title. So you can remove a deceased joint proprietor but the sole survivor will be unable to overreach the deceased’s estate’s equitable interest as a tenant in common (protected through the form A restriction), unless a second trustee/registered proprietor is appointed.
I hope that helps.
Alexander Learmonth QC
New Square Chambers,
12 New Sq., Lincoln’s Inn
London WC2A 3SW
020 7419 8000 (tel) / -8050 (fax)
<On the death of the partner, your client was left as sole legal owner of the property. You can get the partner’s name removed from the title simply by filing the death certificate with this form: [Deceased joint proprietor (DJP) - GOV.UK ]>
That is very interesting. I thought that you could only do this in a situation of joint tenants, but not when the property is held as tenants in common. I would really appreciate if you are able to clarify this please.
Thank you so much.
Jonny Chody
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