192 responses

  1. Jason
    April 6, 2016

    I currently own a house as tenants in common with two relatives. One of them decided to stop paying their 1/3 of the mortgage 5 years ago. They have agreed to do a transfer of ownership to us yet remain named on the mortgage. The mortgage provider is providing a letter to so they have no issue with this. I just wanted to know the rough cost for doing the transfer of ownership through you?

    Reply

    • Justin
      April 6, 2016

      Thank you for this – this is what is called by conveyancers a “transfer of equity” – see here: Transfer of Equity

      I do not handle this work myself but, depending on the particular individual circumstances, I would expect a conveyancer to charge up to about £500 + VAT and Land Registry copy, search and registration fees.

      I hope this helps.

      Reply

      • Rebecca Whiteman
        February 21, 2021

        Hi I have a tenants in common mortgage that was changed to this from joint tenancy in 2011. We separated due to domestic violence and he was convicted of harassment charge. We have a 13 year old daughter. I live in the house with my partner and we have paid the mortgage for 10 years. Co owner my ex..has not paid a penny for 11 years. We paid equal deposit. Is he entitled to 50/50 share of equity if he hasn’t contributed. Plus we have completely renovated the house. I’m now worrying about 4 years time when he will try to sell the house when daughter be 18. We not a position to take over the large mortgage even though we have never missed a payment. What are my rights.

        Reply

      • Justin
        February 28, 2021

        The law’s starting point is to assume that joint owners who are tenants in common own equal shares, unless there is a declaration of trust in place saying differently. However, this assumption can be challenged by evidence and the courts can adjust the parties’ respective shares if it is clearly appropriate to do so.

        I suggest you consult a property litigation solicitor to see whether you have grounds to apply to court to adjust your shares in the property.

        Reply

  2. Sara
    May 17, 2016

    Hi,

    If only one of you has the legal title to the piece of land but you are both beneficial owners, can you be joint tenants or would you have to be tenants in common?

    Thank you

    Reply

    • Justin
      May 17, 2016

      It can be either. In such a situation it is particularly important to have a declaration of trust, and that should specify how the beneficial interest is jointly owned: as joint tenants or as tenants in common

      Reply

  3. Darryl
    June 1, 2016

    I have a tenancy in common. We are selling soon and I have a 40% share of the house. When selling would we repay the bank then split 60% 40% or split 60% 40% then repay the bank. We have been paying 50/50 Mortgage repayments so both still owe 50/50 of the outstanding mortgage. This changes the amount I’m entitled too considerably.

    Reply

    • Justin
      June 1, 2016

      It does depend on exactly what has been agreed and (ideally) set out in a formal declaration of trust.

      There are the two possibilities you mention: if you and your co-owner have each agreed to pay 50% of the mortgage, then the 60:40 split should be first, with 50% of the mortgage repayment coming from each owner’s share. On the other hand, if there has been no specific agreement about the mortgage*, it is arguable that, as a 40% owner, you should only pay 40% of the mortgage, in which case the mortgage should be paid off first, with the remaining money being split 60:40.

      *The fact that you have been paying half the mortgage indicates that the first possibility applies, but if this is wrong then, not only should you get 40% of the gross less 50% of the mortgage, but presumably your over-payments historically should be corrected by a balancing payment being made by your co-owner to you, equivalent to 10% of the historical mortgage payments you have made.

      The fact that these alternatives exist demonstrates the benefits of having a proper declaration of trust in place setting out the detail, rather than simply relying on the Land Registry transfer form and stating the 60:40 split in it without covering other aspects.

      Reply

  4. anne
    July 26, 2016

    How do we set up a tenancy in common for five people and a vacation home?
    Three of my cousins want the use of the house and land and me and my sister just want the use of the land?
    My sister and myself have a home in the same area so we dont want to use the vacation house..but we dont want to lose the property.

    Reply

    • Justin
      July 27, 2016

      Under English law, the maximum number of people who can own the legal title to land is four. You could decide which four of you would be legal owners, and all five enter into a deed of trust, stating that the four legal owners hold the ownership on trust for all five, and setting out each person’s rights and responsibilities relating to the property.

      If you want detailed advice on this, I suggest you take the discussion off-line: either with me or with a local lawyer of your choice.

      Reply

  5. Michelle Thompson
    August 17, 2016

    Good afternoon

    I am buying a house with my partner and I have put in all the deposit. So say for example this is 10K. We also intend to have a new kitchen fitted once the house is ours and just again say for example that is another 10K. I don’t understand how this goes down legally on the paperwork. So say we split up and we had to sell the house in a few years time and just say the house sold for 10K more than what we paid for it. How do I guarantee I get my 20K back? not that of course I am intending on splitting up I just want to ensure my money is protected. Its just very confusing as I don’t want a percentage of the 20K back, I would want it all back if it should sell for 10K more, otherwise of course I understand all I would get back is my deposit if it was to only sell at the same price we bought it for.

    If you can advise me, I would very much appreciate it 🙂

    Many thanks
    Michelle

    Reply

    • Justin
      August 17, 2016

      There are various ways to deal with this –
      1: The simplest is to say that, on a sale, you get back £20,000 (your £10,000 deposit plus the £10,000 on the new kitchen) before the rest of the sale proceeds are shared – equally or in whatever proportion is appropriate bearing in mind who pays for the mortgage and other outgoings
      2: A refinement of this would be to add interest at an agreed rate to the sum to be paid out to you
      3: A further refinement would be to agree that your £20,000 investment represents (say) 5% of the value of the property and that you should get 5% of the value of the sale proceeds before the balance is split.
      4: In any of these cases, you can agree that the minimum you would be paid is £20,000 (protecting you if property prices drop)

      I hope this helps.

      – Justin

      Reply

  6. Bill
    August 19, 2016

    Hello Justin, I own a 50% share of a house I’ve lived in for 20 years with my partner who has died lie aving her share to her 2 adult children who have effectively forced me to sell, the sale is nearing completion but I am having problems in that the conveyancer doesn’t keep me informed of what’s happening and has told me now that she is intending to charge me 50% of her fees which I have not agreed and that this is the usual practise if I don’t agree she will not release the proceeds of sale, is it right that I have to pay 50%, many thanks

    Reply

    • Justin
      August 20, 2016

      A good question – and one to which I don’t really know the answer!

      Normally, the owners of a property pay the costs of its sale in proportion to the shares in which they own the property. However, where you are being forced to sell, it seems wrong you should also pay for it.

      I assume there is no court order requiring you to pay. If so, then it seems to me that your liability depends on whether you have agreed to pay or not. If you have signed the lawyers’ terms of business, the likelihood is they include a provision that requires you to pay. Atlernatively, there may be a declaration of trust that includes provisions for who pays. If neither is the case, they cannot force you to pay. I suggest, therefore, you check what you have signed for.

      Certainly, they cannot hold onto your share of the proceeds – unless, as I say, teir terms of business include a provision that entitles them to.

      I hope this helps.

      – Justin

      Reply

  7. Stephen croft
    August 22, 2016

    Hi
    Friend of mine is joint owner of a property with his mum dad and sister

    Three want to sell and sister is refusing

    Can three to one force a sale of the property so they can realise their personal quarter shares in cash ?

    Thankyou in advance

    Reply

    • Justin
      August 22, 2016

      Assuming there is no existing agreement to the contrary, yes.

      Under English law, the joint legal owners of a property hold it as trustees with a duty to sell, but the power to delay the sale. The power to delay sale can only be exercised while all the trustees agree to exercise it, so if one trustee wants to sell the other trustees have to comply with their duty to sell.

      This can be enforced by getting an order for sale from the court.

      The position is different, however, if (for instance) there is a trust deed with a provision requiring all the owners to agree to a sale.

      I hope this helps.

      – Justin

      Reply

      • Linda
        September 14, 2016

        Hello,

        How long and what would the approximate cost of getting a court order to sell be?

        Thank you in advance.

        Reply

      • Justin
        September 25, 2016

        I’m afraid it is impossible to give any firm estimate of either cost or time, as each case depends on its own circumstances. In a straightforward case, you should expect a cost of £2,000 to £5,000 and a timescale of 6 to 12 months: broad bands, I know, but it is impossible to be more precise.

        – Justin

        Reply

  8. Sarah Pettet
    September 23, 2016

    We have a tenancy in common. Between myself my husband at 25%each with my mum at 50%. My mum has died intesate. There is a mortgage which has only ever been paid by myself and husband. I have a brother and sister. My mum also had 1500 debts and no other asset’s. Would her portion go to myself and my husband and can we be forced in to a sell due to the debts? We have no way of paying for debts or probate.

    Reply

    • Justin
      September 25, 2016

      Assuming there is no declaration of trust or other evidence of the three owners’ intentions/agreement, it seems that your mother’s estate comprised her 50% share of the house and various debts. Those debts need to be paid off, and the only way of raising the funds for that would be to sell her share of the house – which might involve selling the house as a whole, but it would be better if you and your husband could buy out your mother’s share.

      You do not say who benefits under your mother’s intestacy: whoever it is would be entitled to receive full value for her share in the property after the debts are paid off. If you are the sole beneficiary, you effectively need to pay off the debts and are then entitled to have your mother’s share in the house transferred to you. If others are entitled as well, you need to buy out your mother’s full share so the net estate (after the debts are paid) can be distributed.

      I hope this is clear

      Reply

  9. Tom
    September 29, 2016

    Hi, with a joint tenancy if one party wants to hand there share in the property to the other party with no fees changing hands is it as straight forward as signing over your share. Or would it mean the agreement having to be changed to tennats in common first before the shares can be transfered.
    Many thanks

    Reply

    • Justin
      September 29, 2016

      There is no need to change then transfer – the transfer can be by two joint tenants to one of them.

      Please note: while no money may change hands, if the property is subject to a mortgage, the transferee (recipient) is deemed (for Stamp Duty Land Tax purposes) to pay the transferor (donor) half the value due under the mortgage at the date of transfer.

      – Justin

      Reply

  10. mike connors
    October 19, 2016

    Hi Justin
    I am the executor and beneficiary of my brother’s estate which includes a property he owns with two other co owners as tenant in common. How do I add my name at the land registry to the property in order to become co owners with the other two co owners
    Mike

    Reply

    • Justin
      October 19, 2016

      Your question is just one aspect of a larger picture that should be considered (is it appropriate to add you as a co-owner, or should the property be sold, etc?) but to answer it directly, and assuming the transfer you have in mind is appropriate: you and the surviving co-owners would need to sign a Land Registry Transfer form (TR1) to transfer the title to the property from the names of the co-owners and your late brother into the names of the co-owners and you, and lodge this at the Land Registry with evidence of your brother’s death and an application (Land Registry form AP1) to register the Transfer.

      I hope this helps.

      – Justin

      Reply

  11. Julia
    October 20, 2016

    Hello. My husband and myself own a bungalow outright in joint name. Our mortgage finished in 2013.
    We are both retired and it has been suggested that we apply for the property to be held as “Tenants in Common”
    It is unlikely that we will move home now but would like to secure the property for our daughters should we need to receive care at a later date. We have mirrors wills at the moment that leave the property to each other and then our daughters?

    Reply

    • Justin
      October 20, 2016

      That is probably a very sensible idea: the full proposal is that, if you convert your “joint tenancy” (under which the surviving co-owner automatically inherits the whole property if one of you dies) to a “tenancy in common”, you can each leave your half share of the property to your children – rather than to the surviving co-owner. This “ring-fences the first 50% for the children, preventing it being taken for long term care fees for the survivor.

      The problem with this is that it can leave the survivor vulnerable: you don’t want the children to force a sale of the property to get their value out, leaving the survivor to find new accommodation with only 50% of the property value for this. The remedy for this is to make it clear in your Wills that the property must not be sold without the consent of the survivor, who can live there rent-free; further, if the survivor wants to move, they should be allowed to use the children’s share of the sale proceeds towards buying replacement accommodation (though the children’s interest would still be ring-fenced in the new property).

      If this suits you, you can implement it by –
      (a) converting the joint tenancy to a tenancy in common – Land Registry form SEV and
      (b) making new Wills (or a codicil to your existing Wills) to leave your respective shares to your children, but subject to the conditions mentioned above.

      I hope this clarifies things

      – Justin

      Reply

  12. Ann
    February 5, 2017

    Hi, my daughter and husband own a house as tenants in common and the mortgage is in joint names but is paid from her husband sole bank account. He has recently died leaving no will. There is plenty of funds in his bank account to continue paying the mortgage but the bank has frozen the account and refused to make any payments.What does she need to do?

    Reply

    • Justin
      April 26, 2017

      As your son-in-law’s widow, your daughter almost certainly inherits the estate (or a large part of it, depending on whether there are children and on the value of the estate). There is a method of deciding who gets what here: https://www.gov.uk/inherits-someone-dies-without-will

      As the widow, your daughter can apply for “letters of administration” (the equivalent of probate where there is no Will); further details here: https://www.gov.uk/wills-probate-inheritance/if-the-person-didnt-leave-a-will

      Armed with the letters of administration, your daughter can get the bank to release the funds in the account so they can be distributed as required by the rules of intestacy.

      Meanwhile, she should write to the mortgage lender to explain the position, so they know things will be sorted out

      I hope this helps

      Reply

  13. Anne youngman
    February 15, 2017

    If a continuing trustee becomes mentally ill can the other trustees sell the property or does the power of attorney take over her role

    Reply

    • Justin
      April 26, 2017

      If the appropriate power of attorney has been granted, the attorney can act for the mentally incapable trustee. However, depending on the terms of the trust, the other trustees might have power to remove or replace the mentally incapable one.

      Reply

  14. John
    February 16, 2017

    Hi Justin,
    Firstly this article is very informative thank you. My wife bought a property with our daughter with ownership and mortgage split 2/3 and 1/3 respectively. This arrangement was firstly to help our daughter buy a property and also to enable my wife to stay at the property once every 1-2 weeks (when it was convenient for our daughter) as it was close to her work. Unfortunately the relationship between ourselves and our daughter has broken down and she is refusing access on the grounds of it is her home. My questions are can she refuse access and if necessary can we force a sale .

    Reply

    • Justin
      April 26, 2017

      I assume there is no declaration of trust in place that governs the situation. However, it sounds as though the purpose of the purchase was to provide a home for your daughter and her family, with occasional visits (with your daughter’s permission) by your wife.

      The main purpose seems still to apply, so I don’t think your wife can insist on either access or a sale on the ground that her relationship with your daughter has broken down

      I appreciate this is not what you want to hear, but I fear that is how the courts would interpret the original arrangement and, in the absence of agreement as to what would happen in the current circumstances, I don’t think there is any way out. Sorry!

      Reply

  15. Jessica
    February 24, 2017

    Me ex and I own our property as joint tenants we both hold the legal title. He has not lived her for 23 years and has not contributed to the mortgage payments at all. I want to be 100% beneficial owner and want to transfer the legal title to me so as to draw down equity in the property. Can you explain how i can do this

    Reply

    • Justin
      April 26, 2017

      You would either need to get him (and the mortgage lender) to agree to the property being transferred into your sole name, or you would need to get a court order to force this. Either way, I think you should first have a detailed discussion with a solicitor, based on the actual circumstances of your case. The solicitor can then contact your ex to see whether he will agree, or apply to the court for an order if your ex will not cooperate (assuming you have good grounds for making the application – mere absence is not enough)

      Reply

  16. James Young
    March 11, 2017

    My wife is registered as having joint title to a family property with her two brothers.The two brothers live in the house ,one with his wife and two adult children although they have another rental property. Can the sole brother and my wife force the sale of the property ?

    Reply

    • Justin
      April 26, 2017

      Assuming there is no declaration of trust or other agreement preventing it, then any co-owner can insist on a jointly-owned property being sold, if necessary getting a court order to force this. Accordingly, the answer to your question is, “Yes”

      Reply

  17. Martin
    March 20, 2017

    Hi Justin
    Presently we have house with joint ownership we both have children from the previous marriage!
    I want to apply for tenants in common to make sure my children receive their equal share of the property and making sure she will retain the house untill she dies! but my partner ( who we are about to get married later this year) is very unsure about this.
    My question is could I apply for my half only and leave her half has joint ownership?

    Reply

    • Justin
      April 26, 2017

      No: either the house is held by you as “joint tenants” or it is held by you as “tenants in common” – you cannot have a sort of half-and-half arrangement

      However, severing the joint tenancy to create a tenancy in common can be done by either owner, even if the other does not want it done

      Reply

  18. Leigh Roberts
    April 7, 2017

    Hi,

    I am a tenant in common with my ex partner, the father of my children who has recently died intestate. Should I not have a say in the solicitor and estate agent instructed to sell the property? Also, the family have taken our keys for the property and changed the locks – surely this is illegal as when we took out the tenancy in common we were informed that we had equal access rights to the property, would this really change upon his death?

    Hope you can help please.

    Reply

    • Justin
      April 26, 2017

      The answer to both your questions is “Yes”: you should have a say in who handles the sale of the property and you do have a right of access meanwhile. Your co-owner’s death does not change that: his administrator(s) step(s) into his shoes, but this does not mean you lose your rights as a co-owner

      Reply

  19. Jane
    April 8, 2017

    Hello
    A friend of mine is joint owner of a collection of property worth possibly over 1 million. Her sister and family live in part of the property (rent free) and now my friend wishes to sell and split the procedes 50:50. My friends sister has agreed to sell (in writing) but is stalling the sale and also owes money to my friend for generated income from the property.
    1. Can my friend set a court date without the use of a solicitor to ask the court to force the sale, if it went to court who is liable for the costs?
    2. Can my friend initiate the sale of some or all of the property and split the procedes with her sister 50:50 since she has agreed to sell, or will a sale agent require both signatures to procede?
    3. Can my friend ask the court to place an order on her sisters half of the proceedes to pay in full the 50% share of the income generated from the property?
    Thank you

    Reply

    • Justin
      April 26, 2017

      In reply to your questions:
      1: I strongly recommend using a litigation solicitor to apply to the court for an order for sale. Litigation really is not for dabbling in and, though you will need to pay funds on account up-front, if your friend’s sister is being unreasonable in refusing or delaying to cooperate in the sale, she will be ordered to pay your friend’s legal costs at the end – if necessary out of her share of the proceeds of sale
      2: The agent should require instructions from all the legal owners, so an order for sale is the first step
      3: In a word, “Yes”

      I hope this helps

      Reply

  20. Tom
    April 12, 2017

    Hi Justin,
    I’ve seen the government guidelines to add my wife to my properties and understand this is just a case of completing forms TR1 and AP1? However, although both are without debt, one is freehold but the other is leasehold. Do I need to fill out any additional forms for the leasehold property?
    Thank you

    Reply

    • Justin
      April 26, 2017

      That depends on the terms of the lease: it may require you to get the consent of the freeholder, and will almost certainly require you to notify the freeholder of the change of ownership.

      If you apply direct to the Land Registry, you and your wife will also need to complete a Land Registry form ID1 each as well

      Reply

  21. Donna Holmes
    April 12, 2017

    Hi justin. I split with my partner 5 years ago, we own a home as joint tenants for a number of years I have been trying to sever ties and sell the property or he has made multiple offers to buy me out, all to no avail. Due to harassment issues by him and his wife I was forced to move out, now they are in the process of moving in and making plans to remain there until his step daugher is 18 in 14 years. I am worried what my equity would be if he makes more contribution due to his longer term in the property.I did pay all the mortgage and up keep soley for the first 5years. Will this effect my rights to equal share?

    Reply

    • Justin
      April 26, 2017

      It comes down to a question of why the house was bought in joint names originally. If it was to be owned equally, then making extra contributions will not, of itself, increase that person’s stake in the property. Further, if one owner is living at the property, they should pay “half rent” to the non-occupying owner, and this could be in the form of extra contributions.

      Reply

  22. susan
    April 14, 2017

    I own the inherited mortgage free house I live in with my three non-residing siblings under tenant in common ownership. So there are four names on the title deeds. I will be moving out soon and want my name removed from the title. I will be receiving no money for this. I want nothing more to do with this house. Bottom line do I need a solicitor to action this or can I do this myself via the land registry? And do my three siblings need to know what I’m doing?

    Reply

    • Justin
      April 26, 2017

      The mechanism for removing your name from the title would be for you and your siblings to sign a transfer from the 4 names to 3, so this would require them to cooperate. They would need to register the transfer at the Land Registry, and by far the easiest way to handle this would be for them to instruct a solicitor to prepare the transfer document, get it signed up and registered.

      You do not need a solicitor yourself, but you will need to prove your identity to the Land Registry’s satisfaction: they have a form (ID1) for this.

      Please note that removing your name from the title does not release you from liability under any mortgage you may have signed. It may also be appropriate for the transfer to include an indemnity in your favour in respect of any future breaches of any restrictions or obligations that may affect the property

      Reply

  23. phyllis northam
    April 26, 2017

    Me and my brother jointly owner of a house and land and he just got divorced and gave her a lifetime estate in the house. I had no idea until now can he give her lifetime estate without my consent. I do not agree with this what should I do to get that taken out of their divorce papers i do not agree with that

    Reply

    • Justin
      April 26, 2017

      If you are on the title register as a joint owner, no order relating to the property should be made without you being given a chance to put your case forward. I suggest you ask your brother for his solicitor’s contact details, so you can contact them to make your objection known

      Reply

  24. Carolyn
    April 26, 2017

    My son and his now ex girlfriend took out a mortgage 2.5yrs ago but needed a bigger deposit for the lender to offer the mortgage. I stood in and gifted a £40,000 deposit. A letter of trust was drawn up by a solicitor and it was signed by both my son and his girlfriend at the time, myself and a witness and held with the lender. This stated that his ex had no claim to that money, however it also clearly identified to myself that if the house depreciated so would my £40,000 in order that the lender still got their money. The title of deed was signed and agreed by both that ownership would be of unequal amounts his 62.5% due to my loaning the deposit and her 32.5%. They also spent money on the property although this was not necessary but to put their mark on it, by changing the double glazing, new bathroom suite and new kitchen which with decoration came to £14000, this was saved for and paid for as and when they had enough money. Although his ex paid the mortgage as only wanting one direct debit, he paid everything else by direct debit, council tax, water rates, building & contents, elect, heating, phone, tv licence, shopping. They both paid their own petrol, car tax and car insurance and mobile phone bills. They have now split up. She has told my son she does not wish to live there and she will stop paying the mortgage. My son has been to the lender and it is too late this month to move it to his bank account so he will have to check on 2nd May to see if it has been paid and if not make a manual payment over the phone to prevent his credit score being blackened. He is trying to be amicable and asking her does she wish to sell it and both move on with their life, does she wish to see if she can buy him out with support as she would not afford the mortgage on her wage alone, and that he has already sought advice that he does not earn enough to buy her out but his father and I are willing to help which means he will keep the house. The price of the house has not gone up and remains the same so there is no equity in it. He has given her options to decide what she wants to do. However she has been ignoring him and not responding to his messages. She chose to move out he did not ask her to leave. He has since contacted her asking for her to meet to discuss things and she is saying she has no interest in the property in living there, however she is not signing the property over to him and she is not removing herself off the mortgage but she is not paying towards it either. She then told him he could not do anything with that property unless she agrees as her name is on the mortgage. Can she do this as we are in a pickle as he is now paying for everything and she is making no contribution at all. His father and I will have to help out financially as he will not be able to afford to live there on his own and pay all the bills from his wages. However we do not want him to receive bad credit because of her ignorance so have said we will support him until hopefully we can reach a solution. We are not expecting her to walk away with nothing and will offer her something to leave even though the evaluation of the property has clearly identified that there is no equity in the property. Can she be forced to sell? Is there a difference because he owns 62.5%?. Can he request she come off the mortgage. The lender is happy to do a change of title and continue the mortgage as long as our son takes it out with his father and I and there is no problem at all with that because of the income my husband and I bring in. Can we approach the court to force her to sell and get this resolved? Will we be liable for all court costs and solicitor fees? How do we stand with no equity in the property and would it be seen by a judge that equity is there regardless because she had contributed to the mortgage and would need a pay out. We can afford to give her something but not a lot to walk away. If it remains as it is my husband and I are supporting our son to keep the home going and she is laughing as she still remains a part ownership as she is on the mortgage and the title of deeds. Please help we are struggling here and want to try and at least get some answers that is it legal proceedings we need to start and what success or not we may achieve. Many thanks for all your help, its very much appreciated.

    Reply

    • Justin
      April 26, 2017

      Wow! That’s a lot of information to absorb!

      It sounds as though there may be a declaration of trust between your son and his ex-girlfriend, and that should be consulted first, to see whether any of its provisions are relevant.

      Assuming the declaration of trust does not help, and only specifies the respective shares in the property (irrelevant currently, if there is no equity) then the law adopts a fairly blunt approach: either co-owner can insist the house is sold, but neither can insist the other either sells their share to the first or buys out the share of the first. In any event, if there is no equity value in the property, and neither individual can take it on alone, it seems the solution is to sell the property and each start again.

      If the ex-girlfriend will not cooperate in the sale, the remedy its to get a court order forcing the sale. The costs of getting that order should be borne by whichever party is being unreasonable, but if there is no equity value in the property you may well not get the ex-girlfriend to pay for her stubborn-ness. I’m afraid this seems to be a case where she has nothing to lose (except her own credit rating) so cannot be forced to cooperate unless you/your son are prepared to risk having to bear the cost of getting a court order.

      The only ray of hope is that, if the ex-girlfriend has no financial resources, she will find it difficult to counter the court application, so the costs of going to court could be relatively low.

      Your son should, of course, explain the position to the lender, who may be willing to suspend the mortgage instalments while your son gets an order for sale and then sells the property, but it sounds as though in any event there will be a shortfall to be made good so the mortgage debt can be repaid and your son’s credit rating protected.

      I hope this helps.

      – justin

      Reply

  25. Paul Smith
    April 26, 2017

    I own 50% of a property with my father but I do not live there. If my sister, who is to be left his 50% in his will were to move in with him, where would I stand and what would my rights be? Thanks Justin.

    Reply

    • Justin
      April 26, 2017

      Assuming there is no declaration of trust saying anything different, you and your sister will be co-owners of the property; if she is in occupation and you are not, she should pay half the market rent for the property to you. Either you or she could insist on the property being sold and the proceeds split between you.

      I hope this is clear

      Reply

  26. Raj Marya
    May 11, 2017

    My wife and I bought our house in 1986 as joint owners. In order to protect the interests of our sons we applied for and got the restriction entered as tenants in common in 2005. Now with the change in law relating to inheritance tax we believe that this restriction is no longer required. We want our house to be passed on to the surviving spouse and finally to our sons. So we want the restriction removed. Form RX3 (Application to cancel a restriction) needs to be submitted to HM Land Registry. Supporting documents required are ST5 and trust deed to change from tenants in common to joint tenants. What is the cheapest way to prepare this simple trust deed? Thanks and regards.

    Reply

    • Justin
      May 11, 2017

      The simplest and cheapest option is not to change it!

      Holding the property as tenants in common does not affect your ability to make use of the Residence Nil Rate Band for Inheritance Tax, whether you each leave your half of the house to your children or whether you leave it first to the survivor of you, then to your children.

      Holding the property as tenants in common and each leaving their half direct to the children (with a right for the survivor to remain in occupation, and to move if they want) is an effective way of “ringfencing” the half left by the first to die to protect it from being taken for long term care fees for the survivor.

      I therefore see no merit in changing to joint tenants and there is scope for protecting your children’s position if you remain tenants in common.

      I hope this helps.

      Reply

  27. Roxane Newsome
    May 14, 2017

    My partner has lived in a property for over 10 years, as a rent paying tenant of the landlord who was his mother’s husband. After she died last August he became trustee of a number of properties with shared ownership and as trustee and has replaced his mother as joint owner and now has his name on the title deeds. One of the properties is the one he currently lives in and he is now one of 3 joint owners (himself, his mother’s husband and the husband’s brother). I have a couple of questions. At the time of his mother’s death, my partner was not working and his mother’s husband (one of the joint owners) insisted he claim housing benefit. Is this fraudulent when he is part owner/trustee of the property? He is now working again albeit a low income. His mother’s husband is still insisting he pays rent. He believes that this is not in line with his mother’s wishes although this was not specified in her will and the trust. Is my partner now the landlord, owner, trustee and tenant all at once and is he legally allowed to occupy the property rent free as he believes his mother wanted regardless of the other two joint owners?

    Reply

    • Justin
      May 14, 2017

      Though your partner is a joint legal owner, that does not mean he necessarily has any beneficial interest in the property, including the right to live there rent-free. Any beneficial rights he may have will depend on the terms of the trust(s) to which the properties are subject, and that is not clear from your message.

      Accordingly, there is nothing necessarily wrong (based on the information supplied) with him being charge rent; further, if he is being charged rent, there is nothing wrong in him claiming housing benefit.

      I hope this helps, though there seem to be many aspects to this that warrant checking.

      Reply

  28. Graham Blackbouirn
    May 20, 2017

    For historic reasons my brother is tenants in common together with my elderly parents of a house in which none of them now lives, and which is let. My parents’ wills states that their estate will be divided equally between my brother and me on their death, so I would end owing 1/3 of the house.

    I have recently discovered that my brother has obtained planning permission to demolish the house and build a new, much larger, house on the site. So far as I know, he hasn’t informed my parents of this, and on his planning application (which I discovered online) his agent declared he was the sole owner. I can only guess that he is making plans for the house after my parents death. I don’t want to let my brother know I have discovered this, since my parents would also probably find out, which would cause much distress. But I would like to know whether, after my parents’ death, my brother would be entitled to demolish the house without my permission, or whether I could force a sale. In fact my preference would be to effect a deed of variation (is that the correct term?), so that my 1/3 share would go directly to my children, but I don’t know whether my brother would agree to this (I have a strained relationship with my brother, who refuses to discuss the future, even though we have joint Powers of Attorney (not yet invoked) on behalf of my parents).

    Reply

    • Justin
      May 21, 2017

      On the basis of the information given (and assumptions made), your brother is not entitled to develop the property without the consent of his co-owner(s).

      This does not stop him obtaining planning permission for the development: anyone can apply for planning permission, whether they own the land or not, though they should give the (co-)owner(s) notice of the application: it seems your brother did not do this.

      Once you become co-owner, you can insist the property is sold – or that your brother buys you out, which is probably what he plans to do, anyway.

      There is nothing to stop you assigning your (expected) one-third share of the house to your children, once you own it, but I suspect you are talking about varying your parents’ Wills so they leave half of their respective one-thirds shares direct to your children; while this would need the cooperation of the executor(s) and the affected beneficiary/ies (just you, in this scenario), there is no good reason for your brother to be obstructive, I think.

      I suspect he plans to buy you out once your parents are no longer around, but I’m not sure he has gone the best way around to do this, either from your parents’ estates’ tax position or his own – getting planning permission increases the value of the property in the hands of your parents and your brother, and therefore increases the value of your parents’ estates (and the tax payable on them) – it also increases the price he would have to pay to buy you out.

      I hope this helps. clarify any points you needed clarification on.

      – Justin

      Reply

  29. Bianca
    May 23, 2017

    Hello,

    My boyfriend and I are about to purchase a house together. I am putting in 85% of the deposit and he is putting in the remaining 15%, however we intend to split the mortgage/bills equally (50% each). Will this effect my 85% share in the property?

    Reply

    • Justin
      May 23, 2017

      In the absence of any evidence to the contrary, the law will assume you and your boyfriend are to have equal shares in the property, whatever contributions you each make.

      You should therefore get your conveyancing solicitor to draw up a “declaration of trust”, setting out what you will each be responsible for and entitled to, so as to put the questions beyond doubt.

      – Justin

      Reply

  30. Brenda
    June 6, 2017

    Hi Justin

    I have recently bought a house with my sister and her husband, they own 50% and I own 50%, we have no mortgage.
    originally my brother was part of the scheme but backed out at the last minute, but I went ahead as my sister and her husband said they hadn’t enough money to buy a property on their own. I realised the dynamics had changed and said that it may not work out. We had signed a form agreeing to be tennants in common with a trust deed,but as yet haven’t done the trust deed. We are now in a position of trying to agree what we put in the deed but I find I am no longer happy with this arrangement and would like to part company. What are my legal rights?

    Reply

    • Justin
      June 6, 2017

      From what you say, things have been done in the wrong order: you (and your sister and her husband) have put your (and their) money in and bought the property before dealing with the terms on which it was to be bought. This creates a potentially nasty mess.

      What was the property being bought for? As an investment, as a home for one or more of the owners or something else?

      Assuming it was as an investment, then have you changed your mind or have they?

      Without a declaration of trust, and subject to the above points, it is likely that you can insist on the property being sold and the proceeds split 50:50, but if you have changed your mind and there is a net loss as a result, it is likely that you could be expected to bear that loss, on the basis that you have broken the oral agreement.

      The worst situation for you would be if the property was bought as a home for your sister and her husband, as it is likely they would not be forced to sell, as that would defeat the purpose of the arrangement as envisaged originally.

      I think you urgently need independent advice, which can only be given if all the facts are made available, so I suggest you consult a property lawyer local to you as soon as possible.

      I hope this helps.

      – Justin

      Reply

  31. Royhubbarb
    June 8, 2017

    Hi Justin. Can one party of a joint tenancy severe that tenancy in favour of a tenants in common without notifying the other joint tenant?

    Reply

    • Justin
      June 8, 2017

      Roy –

      In a word, “No” – a joint tenancy can only be severed by agreement or by one owner notifying the other(s), though there have been cases where a severance has been deemed by one party acting inconsistently with the idea of a joint tenancy.

      The only safe way to sever a joint tenancy (to make it a tenancy in common) is to serve a notice of severance on the co-owner(s)

      – Justin

      Reply

  32. Rachel
    June 21, 2017

    Hi Justin,

    I am a tenant in common with my dad, I live at the property but he rents a share of the property out to cover his mortgage payment. I have a set of keys and the tenant has one. Does my father have legal right to hold a set of keys? Do I have to give him a set? I am terrified he will come and go whenever he likes.

    Reply

    • Justin
      June 22, 2017

      As a co-owner, your father is entitled to access to the property. However, it sounds as though he has in effect assigned his right of access to his tenant; put another way, that you and your father (as co-owners) have agreed that the property will be used in part exclusively by you as your home and in part exclusively by your father for his tenant. On that basis, he has no right of access to your part, and his rights of access to the other part are limited because it is tenanted.

      I hope this makes sense and helps.

      – Justin

      Reply

  33. John Roberts
    June 21, 2017

    Hello Justin – I have recently split up with my long term partner. We shared a mortgaged house. We initially entered into it as joint beneficial tenants. This has now changed to joint tenants in common. Initially I put the deposit in of 24k and two years later spent 7k on improvements. Two years later we split up. Now selling. House valued at 49k more than we paid for it. We had a verbal agreement of if we split up I would get the deposit back and the monies for improvements back and split the remaining equity. This was witnessed by a family member who helped me out with the deposit. Now she’s saying she won’t allow any monies that I’ve invested into the house and will only agree to a percentage of the deposit being paid back and half of the equity. She is completely reneging on our initial agreement. What legal rights do I have and how could I get the verbal agreement enforced? I qualify for legal aid would this be able to pay for legal help? Are you able to advise

    Reply

    • Justin
      June 22, 2017

      If you can provide convincing evidence of the oral agreement then you should be able to enforce it – but if you get Legal Aid, I believe they will want to be repaid out of the money you recover. It therefore may be better to agree to a compromise, rather than pay too much on legal fees.

      I think you need the advice of a local property lawyer, ideally, one who handles Legal Aid, though they are very rare.

      – Justin

      Reply

  34. Jason
    June 21, 2017

    Hi I own a house with my twin brother 50/50, I have moved out and he is living in the house and paying all the bills, he has paid me £20k to buy me out but I have to be attached to the mortgage until the fixed term ends next July.

    He is expecting another child which is going to make his chances of getting the mortgage with him and his girlfriend difficult.

    The mortgage has £136k left to run and he can only lend £115k with his girlfriend.

    I agreed to stay on the mortgage until next July under the circumstances they wait to have another child until then but haven’t waited. Now I can not move on and get the full amount towards a mortgage of my owe as my old mortgage takes half my income into account even though I don’t pay towards it.

    He says I carnt make him sell the house, but I am stuck as I want to move on and start a family and get my own house.
    Can you help with any advise?

    Reply

    • Justin
      June 22, 2017

      I fear you may have boxed yourself into a corner.

      It sounds as though you have agreed (in exchange for £20,000 which your brother has paid you) to allow him sole ownership and occupation of the house, but you have not been able to agree with the mortgage lender that you should be released from the mortgage. You are, therefore, unable to escape the mortgage but unable to force a sale of the house.

      The only chink of light is that part of the agreement with your brother was that you would be released from the mortgage in July 2018, but him and his girlfriend having another child means he cannot afford to comply with his part of that agreement, which probably gives you the right to treat the whole agreement as being “resiled from” by him, entitling you to treat it as non-existent. This would involve you repaying the £20,000, however. If you can do that, you are then back in the position of being able to force a sale of the property.

      However, do not try to do this without proper advice. As you have seen, you are deep into a minefield, and need legal advice (from a property lawyer local to you) to guide you out.

      Good luck!

      – Justin

      Reply

  35. Mrs B
    July 15, 2017

    I have a tenants in common mortgage with a relative. Unfortunately he has passed away and no will was left. He was only added onto this mortgage as I was unable to afford on my own. No contributions or any financial interest.
    However now that he has passed away obviously his share will go to his children. They children are happy to sign over to me but how do we go about transferring everything into my name

    Reply

    • Justin
      July 16, 2017

      On the basis of what you say, there should be no difficulty in your relative’s administrator (assuming “letters of administration” are granted for his estate) signing over the property to you alone: this is called a “transfer of equity”. However, it does mean that the mortgage lender has to agree, and the lender will only agree if satisfied that you can service the mortgage debt on your own.

      It is essential that letters of administration (the equivalent of probate in cases like this where there is no Will) are granted as, without that, nobody has authority to transfer the property to you.

      I hope this helps.

      – Justin

      Reply

  36. linda
    July 15, 2017

    Hi Justin,
    I own a property with my partner of over 20 years, as tenants in common. I am in the process of getting a Power of Attorney, financial and Welfare, for him as he has the beginnings of dementia. If he has to go into care eventually, how do I stand? We have mirror wills, leaving the property to each other and when the last one dies, is then left to family members on both sides. I am worried in case the Social Services take monies when/if he dies. He has less than £23,000 in his own bank account but I have my own account with hardly anything in it, and we have a joint account for the bills. Also, I have 2 properties, in my name which the proceeds go into the joint account for the bills on our home. Can they take into account my properties as I am his partner/companion? Can they put a charge on our property for when I die? Will he have to pay for his care or will he be exempt from paying? Can we safeguard ourselves? I am getting conflicting information.
    Thanks.

    Reply

    • Justin
      July 16, 2017

      Hi, Linda

      The first thing to note is that your property/ies and assets cannot be taken from you to pay your partner’s care fees, nor an a charge be put against your property/ies for them.

      Your partner’s share in the property can be charged with payment of his care fees, but that charge would not be enforced while you need the property as your home.

      I believe that your partner will have to pay a share of his care fees until the cash in his bank account and any investments gets below £16,000, and by that stage social services will want a charge of his share (not yours) in the house to secure further payments, but I confess I am not up to date with the thresholds and financial limits involved.

      I think you have already done what you can to safeguard your interest in the property, by owning it as tenants in common.

      I hope this helps.

      – justin

      Reply

  37. Bev
    July 21, 2017

    Hi. I have a legal divorce agreement with my ex husband that our house has to go on the market on a particular date. I haven’t paid rent- it was family home until 2 years ago. He says that he can charge me rent if I and my property are not out on that day. I have said that if this is the case then I want a legal agreement regarding the rental payments. He says we don’t need an agreement. We are tenants in common with a 50% share each. Can you advise me please?

    Reply

    • Justin
      July 24, 2017

      Bev –

      I suspect your ex-husband is partly right and partly wrong: right in that you don’t need a rental agreement and wrong (I suspect) that he can require you to pay rent.

      The court order “trumps” all the normal rules of joint ownership (and any prior agreement between the two of you). If it says you have to pay rent, then you have to pay rent; if it doesn’t, you don’t.

      You need to read through the court order to see exactly what your rights and obligations now are.

      I hope this helps.

      – Justin

      Reply

  38. Justin Holmes
    July 28, 2017

    HI Justin

    I have got 2 house’s and put down large deposits on the 2 house’s 125000 and 80000 I foolishly had my ex partner ( not married) down as joint tenants equal shares she has always verbally said infront of people she would never take a penny as knew how hard i had worked for the money I had put in I do not have a good job and have worked extremely hard to get what I have I can get bank statements to prove I paid the money and even have a text from her saying I don’t want your money could i have a case to contest her share in the properties as she will not sign them over at the moment and will not give me any figure that she will accept please help me with any advice.

    kind regards
    Justin

    Reply

    • Justin
      July 28, 2017

      Justin –

      In lawyers’ terms, you and your ex had agreed that, though you would be joint legal owners of the properties, they were to be held for your sole benefit; you have evidence (witnesses and a text to that effect – while not as good as having a formal written agreement, that is still evidence of the agreement and the courts will enforce the agreement.

      Assuming therefore that there are no family issues (eg, that neither property is a home for your ex looking after children of yours) you have a good, strong case to seek a court order requiring to transfer the properties into your sole name.

      On the basis of what you say, I do not see any reason for you to pay your ex anything for the transfers, except to cover her legal costs in relation to the transfers (which should be no more than a couple of hundred pounds: she will need to instruct a firm to act for her, that firm will need to check her ID, etc, and they will need to check the Transfers to ensure your ex is left with no residual liability for covenants or other encumbrances affecting the properties).

      I suggest you instruct solicitors of your own to write to your ex, pointing out the terms of the agreement, and inviting her to transfer ownership without being obstructive. If she refuses, and application to the court for an appropriate order should be made, along with a claim for an order that your ex pays your legal costs for having to do this.

      I hope this helps.

      – Justin

      Reply

      • Justin Holmes
        July 28, 2017

        Hi Justin

        Thank you so much for the reply so quickly would this still be the case as she is down as owning 50% and 30 % as the tenant in common?
        I have been for 2 free initial solicitors advice where I live and they said she is entitled to the share that was put down . I am also living in the 1 home and have my kids 50 -50 of the time she left and now rents .
        is there a solicitor you could put me on to that would help me as I live in Shropshire?

        kindest regards

        Justin

        Reply

  39. Mark
    August 3, 2017

    Justin,

    Very helpful site. Thank you.

    I own a rental property with no mortgage that I am about to transfer into 50:50 tenants in common with my wife for both income tax and inheritance tax purposes. We have two children. Instead of just including the two of us can we include all four of us as tenants in common with 25%? I am conscious that a transfer of 50% to my wife does not attract stamp duty or capital gains. Would this also be the case if we split four ways including the children?

    Reply

    • Justin
      August 3, 2017

      Mark –

      Yes, you can include your children. The shares do not need to be equal, but can be adjusted to suit your requirements.

      In particular, as you say, though the gift to your wife will be exempt from CGT, the gift to your children will not, so you will probably want to ensure that the value of the gift(s) to your children do not exceed the amount of your available CGT allowance for the year of the gift(s), avoiding the need for you to pay CGT on the disposal.

      One way to do this would be to follow a two-step process, giving 50% to your wife, then each of you giving 50% of your respective 50% shares (or such other amount as is appropriate), each to one child. The first step can, I suggest, be done by a simple letter to your wife, saying that from the date of the letter you hold the property on trust for you and her; the second stage would need either a Transfer of the legal title into 4 names, specifying the percentage each transferee is to have, or – if a transfer is not appropriate because (for instance) a lender’s consent is needed and not readily available – then a Declaration of Trust, recording the gift to your wife and you and your wife (ideally, also your children) signing to say you (as the legal owner) hold the property on trust for yourself, your wife and your chilkdren in specified percentages.

      It may sound complex, but it’s not really – honest!

      I hope this helps.

      – Justin

      Reply

  40. Gill Lang
    August 7, 2017

    What a great site!
    My dilemma is that my husband and I separated 5 years ago and have been going through divorce process for last year. He has recently died but we were still married.
    He had substantial debts at the time he left, and I was advised to become tenants in common to avoid the possible consequences of his insolvency. This was also good for me, as I subsequently got cancer and was able to bequeath my half of the house to someone of my choice.
    I believe he has changed his will to do the same although I’ve not seen the document yet.
    My question is, can sale be forced? Who pays the cost? I couldn’t afford to buy the other person out. Is there a time frame to be agreed if sale is forced? I am really anxious that I shall be forced to move out of my home….after 30 Years here. Grateful for your advice.

    Reply

    • Justin
      August 7, 2017

      Gill –

      I don’t think you have anything to worry about, though the explanation is a bit long-winded – sorry!

      First, the divorce proce4edings will need to be resolved in some way. As your husband has died, I don’t think the divorce court will make any order except the stop the proceedings. It is conceivable an order would be made to clarify the ownership of and rights in the property, but that order will no longer be based on divorce law, as that no longer applies.

      Instead, the law would ignore the would-be divorce aspects, deciding about the property on the basis of property law. For this, it would want to identify – and if possible implement – the agreement the joint owners had in respect of the property when they bought it. From what you say, it was clearly intended to be the family home, and on that basis it should remain as your home for as long as you need/want it.

      This does not mean you own the whole of the property, simply that it remains your home. If, following the severance of the joint tenancy, your husband made a Will leaving his share to someone other than you, that someone will own that share, but you retain ownership of that share; that ownership gives you a right of occupation (without having to pay rent), while the other owner would not have a right of occupation because, when you bought the property, you and your husband never agreed that it would be home for a third party.

      If you decide to move, it is likely you would only receive your half of the sale proceeds, with your late husband’s half going to whoever he left his share of the house to.

      It may be that your husband did not make a Will, leaving his share to a third party; if so, the fact that the divorce has not gone through means his previous Will (if any) probably still stands, and it probably leaves everything to you; if he did not make an earlier Will, you would probably inherit his estate under the rules of intestacy, depending on the values involved and what family your husband left.

      I hope the above reassures you that you cannot be forced out. The next thing you need to do is find out whether your husband did leave a Will and, if so, what it says, as it may mean an improvement for you beyond being able to stay in your home.

      – Justin

      Reply

  41. Peter
    August 7, 2017

    Hi Justin

    We have a tenancy in common between 4 owners with respect to a commercial building that was erected with the purpose to be rented out. Is there a way for the two owners who wish to rent out the building to legally force the other two who are generally acting in an obstructive way?

    Thanks

    Peter

    Reply

    • Justin
      August 8, 2017

      Peter –

      The law’s general solution to disagreements between co-owners is to enable the property to be sold so the owners can go their separate ways. This is why, in the absence of an agreement (preferably in writing) to the contrary, and co-owner can usually force the sale of a jointly-owned property.

      In your case, you seem to be saying that the intention was that the jointly-owned property was to be rented out, rather than sold. If you can prove an agreement to that effect, you have an argument against being forced to sell, though it is not an argument I could be confident of winning.

      The better solution would be to buy out the recalcitrant co-owners, if necessary by getting an order to sell and then being the best available buyer!

      I hope this helps.

      – Justin

      Reply

  42. brian lawrence
    August 23, 2017

    my wife and I are tenants in common to make sure our children get at least 50% of our house, however what happens to our joint bank accounts on one of us passing on. Will the children own half the bank account or will all the money in the account go to the surviving account holder

    Reply

    • Justin
      August 23, 2017

      Brian –

      What happens to the money in your joint bank account has nothing to do with your joint ownership of the property; rather, it depends (a) on the bank mandate for the account and (b) on your Wills.

      From the sound of it, your Wills provide that your and your wife’s half shares in the house will pass direct to your children, not to the other of you – presumably with provisions to allow the survivor to continue to use the property as their home and to avoid inheritance tax being payable when the first of you dies.

      If your bank account is such that, on the death of one of you, the account is frozen, then you can each leave your half share of the money either to the survivor of you (which would probably be appropriate) or to your children.

      However, if your bank account is such that, on the death of one of you, the other account owner has full control of the account (normally the best), then the decision is taken out of your hands: whatever your Wills say, the survivor of you will have all the money in the account.

      You should check with your bank as to what would happen when one joint account holder dies: does the survivor automatically get the money or not?

      I hope this helps.

      – Justin

      Reply

  43. Elaine
    March 6, 2018

    I own a house with a mortgage. When I first purchased it, I had put down 80K The house has substantially gone up in value by at least 120k My boyfriend wants to purchase 25% of my house, so essentially putting in 100k The valuation of my house is 400K What are his responsibilities financially towards the house? Does he also pay 25% of the mortgage, taxes, insurance, utilities and repairs/maintenance. I am the only one living there. I occassionally rent out a room. Does he get 25% of that rent?

    Reply

    • Justin
      October 11, 2018

      If he becomes a 25% owner then, in the absence of agreement to the contrary, he would be entitled to 25% of the rent. You would specificaslly need to agree with him (in a “declaration of trust” document) what your respective responsibilities will be in respect of expenses, but you will be primarily liable under the mortgage as it is in your sole name

      – Justin

      Reply

  44. Dan
    March 16, 2018

    Hi Justin,

    Would a property that was held as tenants in common with a sibling before their marriage be condisider part of their marital estate after their death?

    Thanks
    Dan

    Reply

    • Justin
      October 11, 2018

      Their share in the property would be, yes
      – Justin

      Reply

  45. Vivian
    March 23, 2018

    Hello I have a Tenancy in Common and my husband passed. There was no will or probate. Can I appoint one of our 3 children to be a second Trustee to sell the property at Transfer?

    HM Title reads “No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court”.

    Reply

    • Justin
      October 11, 2018

      In a word, “Yes” – or your conveyancing lawyer can act as the second trustee if s/he has all the facts and relevant documentation to show that your late husband’s share passed to you on his death

      – Justin

      Reply

  46. Pat C.
    April 15, 2018

    Hello Justin, I am currently in the middle of selling a home with my now ex, we both have our own realtors and lawyers, my realtor is doing more work than the exs, he is now looking to find a place to rent with his girlfriend, we are both Joint tenants in the agreement as signed by realtor lawyer, We got the house March 7 2017 I moved in April due to apartment rental agreement, since then after the split I have had to force him to sell seeing as he refused to and did try twice to get his own mortgage and he was declined based on his credit. I served him with a court order to sell the property. We are now in midst of looking for a buyer, my ex wants to keep all the monies of the sale and believes that I deserve nothing and he should get back all monies of what he paid in, I did pay all utilities of the home , we both maintained the home he paid the mortgage that was the agreement. My question here is that can he keep all monies of sale of house after the payout of the realtors, real estate layer and mortgage payback without my signature. I have requested with my lawyer that we both get separate cheques of payout seeing as we were never married. During the first few letters from my lawyer my ex has been non responsive until he got served. With kind regards Pat

    Reply

    • Justin
      October 11, 2018

      Pat –

      I’m not sure what you are asking me – or whether your home is in this country, but the fact that you have a lawyer acting for you is good. That lawyer should be able to answer any questions you have, as they will (I hope) have all the facts and be qualified in the appropriate legal jurisdiction

      – Justin

      Reply

  47. Paul
    September 5, 2018

    I’m joint owner of a dilapidated property bought when cohabiting in the property with an ex girlfriend, I left to work overseas in 2002 and she continued to live in the property until 2004 at which point she moved out and the property left empty. The mortgage has been fully paid but she contributed only about 10% of the mortgage payments and I payed the rest.

    During the time the property has been empty it has become quite dilapidated and neighbours are threatening court action, a few times over the years I have tried to buy her out of the property but she refuses to go through with the sale despite saying she doesn’t want anything to do with the property and she doesn’t ant to buy me out. Since neighbours have threatened court action I have tried to inform her that she either needs to pay half the remedial works cost or to sell her interest in the property to me but she refuses to respond to any attempts at contact and she has moved address and I don’t have her new address only her mobile phone and email contacts.

    What is possible legally for me to do to force her either to sell her interest to me or to take sole ownership? Or are there any other legal options I should look into?

    Thanks, Paul

    Reply

    • Justin
      October 11, 2018

      If your ex-girfriend will not cooperate, your only recourse is to apply to court for an order for sale – I suggest you speak to a litigation solicitor to get this under way.

      It is likely that – due to her non-cooperation – that your ex-girlfriend would be orered to pay the bulk of your legal fees.

      I hope this helps

      – Justin

      Reply

  48. Margret
    September 26, 2018

    hi Sir recently i came to an agreement of my friend selling her share of her property to me .I paid her market value in cash and did no formal paperwork , i have found a buyer and i would like to sell of the property , it is tenants in common and there are 2 others, my friends in law is not keen in th sale of the property , what is my status and how can i overcome this , i did this out of trust and impatience as i had the cash in hand , my friend is now in Australia . What advise can you offer me Sir

    Reply

    • Justin
      October 11, 2018

      Without documentation, you are in a difficult position.

      If I understand correctly, you were c co-owner with your friend of the property and she sold her share to you. If that is correct and she confirms it and grants you power of attorney to sell the property, you can sell it, but the power of attorney needs to be appropriate to the circumstances and should be prepared by a lawyer with full knowledge of all the facts.

      I hope this helps.

      – Justin

      Reply

  49. Gary fentiman
    October 11, 2018

    My father died had tenants in common with mother she has dementia she will have to go into a home at some point he left his half to me and my sister in trust my mum now lives with my sister in the will it says the trust would end when she no longer lives in the house we will sell it soon and would like to get our half of the money the solicitor says not to soon in case the council comes after it for care fees with her savings and share of the sale she would have 550000 thousand can they come after our share thanks gary

    Reply

    • Justin
      October 11, 2018

      No, your mother’s care fees cannot be charged against your share of the house
      – Justin

      Reply

  50. Andy Sutherland
    October 23, 2018

    Hi i have a joint tenancy with my partner we are not married she hasn’t made a will, unfortunately she has terminal brain cancer which has left her some what impaired can her daughters if they wanted apply to take control of her affairs and then force me into a common tenancy,this is not what she wanted also can the council take money from her share of the property if she was to go in to care.

    Reply

    • Justin
      October 24, 2018

      Andy –

      Part of this question has been covered in my earlier reply to your other comment.

      As for long term care fees: while you and your partner are joint tenants, neither of you has a share in the property – you jointly own the whole. In theory, that should make it impossible for the council to charge care fees against your partner’s “share” (because, in law, in does not exist).

      In practice, the council could get a charge against your partner’s interest, but if the joint tenancy is not severed, that interest disappears on your partner’s death, and the whole property becomes yours automatically.

      If the joint tenancy is severed, so it becomes a tenancy in common, the council’s charge would “bite” on your partner’s share.

      – Justin

      Reply

  51. Andy Sutherland
    October 23, 2018

    Hi my partner and I bought a house 6 years ago we are joint tenants she unfortunately has brain cancer and it is terminal this has left her with some difficulty with memory confusion etc ,could her daughters apply for control of her affairs and then force me into a common tenancy this taking control of half of the property this is not what she wanted as we had agreed that if she died first the property was mine and I would write a will to leave it to them on my death.

    Reply

    • Justin
      October 24, 2018

      Andy –

      If your partner’s daughters are appointed as your partner’s attorneys or deputies, they could serve on you a notice to change the joint tenancy to a tenancy in common.

      If it was agreed between you and your partner that the survivor would inherit the property and deal with it as agreed on their own death, then you can still claim against your partner’s estate for that to apply – as long as you have the evidence to prove the terms of the agreement.

      This does not, I’m afraid, take you very far, except to make it appropriate for you to seek specific, face-to-face legal advice on the subject.

      I hope this helps.

      – Justin

      Reply

  52. Andy Sutherland
    October 30, 2018

    Hi thanks for replying to my last question can I ask one more,I am in a joint tenancy my partner has terminal cancer and will require care can the local authorities count my partners part of the property as an asset as I am going to carry on living in the property as my own home, we are not married but have been together 17 years she has no other assets over 10,0000

    Reply

  53. Alex
    November 5, 2018

    Hi. I am Alexander.
    I want to ask a question.
    One of the 2 co-owners of a house in London died.
    He left a will in which he appointed the second co-owner as executor and nazachil grandson as heir to all property.
    question: does the appointed executor have the right to sell the whole house without asking for consent from the heir, and what is the procedure for his actions? thank

    Reply

    • Justin
      November 5, 2018

      The first question is: Did the co-owners own as joint tenants or as tenants in common? If as joint owners, then the surviving owner automatically becomes the sole owner of the whole property on the death of his or her joint owner, so the grandchild would get no share in the house.

      I assume, therefore, that the house was owned by the two owners as tenants in common, for the deceased owner’s share passed under his or her Will to the grandchild. The next question is: Was there a declaration of trust specifying what the two owners’ respective shares in the property were? If “Yes” then that declaration is normally conclusive; if “No” then the law normally assumes that each owned a half share – though that assumption can be challenged if there is evidence to justify a challeng.

      If the two owners were tenants in common, then the deceased owner’s share passes to the grandchild and the surviving owner is holding the property on trust for him/herself and the grandchild.

      In order to sell a property in those circumstances, the surviving owner would need to appoint a second trustee, and the obvious choice would be the grandchild, whose consent to the sale would be needed (though either party can probably force a sale in the end).

      If a different co-trustee is appointed, the grandchild’s wishes should (in theory) be taken into account, and if the property is sold then the proceeds of sale would be trust money in the hands of the sellers, who should comply with the provisions of the trust.

      I hope this helps.

      – Justin

      Reply

  54. Jearldine Ramos
    June 4, 2019

    Hi, I have a joint tenancy, the person went for bankruptcy 7 yrs ago, I bought his beneficial interest from the official receiver, since then not contributed to the mortgage and loan against the house. Now I want to sell and the person wants a share of the profit or will not agree to sell. Can I force a sale? Does the person has the right to demand a share of the profit? If so, I did a lot of work to the house to get a better price, can I ask for a bigger share?

    Reply

    • Justin
      July 11, 2019

      If you bought your co-owner’s share from the Official Receiver, why was the title to the property not transferred into your sole name?

      I suggest you contact the Official Receiver and ask for that to be done.

      The former co-owner has no right to demand anything: his/her share in the property now belongs to you and it sounds as though the paperwork showing that now needs to catch up

      – Justin

      Reply

  55. Carole Thompson
    July 10, 2019

    3 years ago, I bought a leasehold flat which had a share of freehold.

    Although the seller wanted to pass the freehold over to me at the same time, without charge, her solicitor said it was not possible to transfer the freehold , as there was a ‘Form A’ Restriction in the freehold title, indicating a ‘tenants in common’ co-ownership which in turn, also meant that a mortgage could not be obtained and registered on the property.

    I therefore paid cash for the leasehold flat and at that time, accepted that I could not become a freeholder.

    However, as time has passed by, 3 of the 6 original freeholders are now deceased and only 2 of the 4 named trustees in the Title Register are still alive. Unless new occupants are allowed to become freeholders, maintenance of the building will eventually cease, as there will be no remaining people with an interest in the property.

    Question : – Please can you tell me how I ( and other new owners) can assume responsibility for the freehold and what can I do to ensure the flat can be sold under a mortgage in future ?

    Reply

    • Justin
      July 11, 2019

      Your seller’s solicitor was wrong, and the freehold owners at the time (including your seller) should have transferred to legal title to you (replacing your seller) and the other freehold owners.

      From where you are now, you need to get the current surviving freehold owners to transfer the freehold title to themselves (except your seller) plus you and any other flat owners who are not already freehold owners, and collect evidence of the deaths of the freehold owners who have died, and register the deaths and the transfers at the Land Registry.

      If you want to stop this being a problem on future flat sales, I suggest the transfer could in fact be to a limited company (I suggest, a company limited by guarantee, so you do not need to mess around with share transfers), the members of which would be defined as the owners of the relevant flats from time to time. That way, there is no need to transfer the freehold every time a flat changes hands: the new leasehold owner would automatically become a member of the company under its articles of association (and the outgoing flat owner would automatically cease to be a member of the company).

      The paperwork needs to be drawn up by someone who knows what they are doing, but it need not be an expensive task and is well worth doing to minimise future problems.

      I hope this helps.

      – Justin

      Reply

  56. Darren Turner
    May 9, 2020

    Hi. My ex partner and I have been separated for a few years now but are joint council tenants. Do you know if she would be able to buy this house without my knowledge or would the council have to tell me?
    Also if she buys another house would I have to move out as it’s a 3 bedroom house and I’d probably be on my own even though we have 2 adult children living with us, they’d probably go with her

    Reply

    • Justin
      May 10, 2020

      If you are both tenants of the house, the Right to Buy applies to the two of you jointly – you would be informed of any proposal to implement the right to buy – provided the council knows how to contact you. However, if you are no longer living at the property and no longer paying the rent, the council could treat you as no longer a tenant, so could allow your ex to buy on her own.

      If (as your second paragraph indicates) you are still living at the property, despite being separated, you would have equal rights under the Right to Buy legislation.

      If your ex moved out, leaving you there with the children, that would give you a strong case for either continuing the tenancy in your sole name or exercising the Right to Buy in your sole name, once the circumstances are explained to and accepted by the council.

      Reply

      • Darren Turner
        May 11, 2020

        Thanks for the reply. Yes we are still both under the same roof but I found a letter from HSBC accepting her mortgage. It hasn’t got any address other than our house which it was sent to. What happens if she moved out and the kids went with her, leaving me alone in a 3 bedroom house?
        Not sure if it matters but I have complicated health issues, main one being parkinson’s.

        Reply

      • Justin
        May 12, 2020

        Darren – I suggest you contact your local council and ask them what their policy is in these circumstances, so you can prepare for any changes that might be on their way
        – Justin

        Reply

  57. Michael
    May 31, 2020

    Hi Justin, very informative site, thank you.

    My Mother (age 75) owns a house, ‘tenants in common’ with her (unmarried) partner of 45 years who has recently passed away, leaving his (larger 66%) part to his daughter (age approx 55). The will allows use of the house until my mother sees fit, plus the potential to borrow money to buy a next property if required.

    My Mother is not sure of the daughters financial position – they are not close and there is friction in the relationship. The daughter only recently came back into contact with her deceased Father a few years ago after some 30 years of not contact).

    My Mother is concerned that once the daughter is named on the deeds (which I believe she is entitled to be?) that she could be forced out of her home if the daughter becomes bankrupt, or wants to force a sale for some reason (despite the will wording allowing lifetime occupation).

    If placed on the deeds, should the daughter contribute to costs of building works concerned with the house maintenance and building insurance (not living/decoration expenses)?

    The daughter is also asking to cease right of occupation if my Mother ceases to live in the property for more than 4 months. Is this reasonable?

    Many thanks

    Reply

    • Justin
      June 1, 2020

      Michael –

      By inheriting a share of the house from her father, your step-sister is a joint owner with most of the rights and duties of a co-owner, and is entitled to be included on the title register (deeds) as a joint owner with your mother, as tenants in common in the applicable shares – the shares will not be specified on the title registers, but should be specified in the document transferring her late father’s share to her.

      Depending on the terms of the Will, she would not (normally) have a right of occupation, nor a right to force a sale, and possibly no obligation to pay for insurance, repairs, etc – it really does depend on the terms of your mother’s right of (presumably rent-free) occupation of the house as a whole, however.

      It is not for your step-sister to dictate how long a period of non-occupation by your mother must pass before she loses her right to occupy – again, that depends on the wording of the right of occupation in the Will.

      I hope this helps

      – Justin

      Reply

  58. Fatima
    July 29, 2020

    Hello Justin, thank you for the article
    I am in the process of buying a property with my partner ( We are not married) . we want to go for a tenant in common as we understand that this suits more our situation . However, we want a declaration or a clause that force the sale when at least one of the party want to sell. ie if one of the party want a way out, the other party must agree to sell or buy the other person shares at market price. In fact, We understand that if we would sell our shares seperatly, in case one of the parties don’t agree to sell, we wouldn’t get a buyer for it.
    Would it be possible to explain , how we can manage to include this clause/Declaration.

    Many Thanks
    Fatima

    Reply

    • Justin
      July 29, 2020

      Fatima –

      This would not be a problem. The Declaration of Trust would record –
      (a) your respective shares in the property
      (b) your respective liabilities for outgoings
      (c) (as you want) that either party can require the other to buy them out on an agreed basis, failing which the property would be sold and the proceeds split as agreed in the Declaration of Trust.

      Your conveyancer should be able to handle this for you. If not, and you want my help, email me at justin@nelsonslegal.co.uk

      – Justin

      Reply

      • Kim
        July 19, 2021

        Have just read this article my son and his ex girlfriend are in a similar position and have all this paperwork in place with all the figures etc He wants to buy her out she refuses and says she will stay and not agree to go and he can’t make her. She also says she will say he forced her to sign which is totally untrue. Where does he stand?

        Reply

      • Justin
        July 21, 2021

        From what you say, there is a Declaration of Trust in place setting out the owners’ beneficial shares in the property but nothing else.

        In that case, your son can force a sale of the property (if necessary, going to court for an order for sale – though I appreciate that means a long delay and a large expense, but a large part of the expense should be borne by the stubborn owner out of her share of the sale proceeds). If the property is sold, then your son could be the buyer (though I agree it is silly to incur agents’ commission, etc when it is unnecessary) and a court order for sale could require the girlfriend to transfer her share to him at a specified price.

        All this would be explained to the girlfriend if your son makes a formal approach (through a lawyer) to buy her out or force a sale and she seeks legal advice.

        The court might not be prepared to force a sale if (a) the girlfriend is disabled or otherwise vulnerable or (b) she is caring for young children who would become homeless.

        The first step is for your son to obtain specific legal advice based on his specific circumstances.

        I hope this helps.

        – Justin

        Reply

  59. Monique Jones
    September 1, 2020

    Hello Justin – very informative article.
    My partner and I lived together in rented accommodation for 9 years until his father gifted enough money for us to buy a house outright which we did in August 2009 as Tenants in Common on the advice of the solicitor. My partner died suddenly June 2010, 10 months after we moved into the property. We had not made any wills so he died intestate. I have been living in the property ever since maintaining it and paying house insurances, household bills etc and the general upkeep. My partners father never made any moves or requests asking me to sell or move out and neither did his 2 children, we always had a good relationship and I was treated like a member of the family. However he has just passed away August 2020, so things may change regarding this. My partner’s children are adults now and may want to realise their share of the value of the property. If they decide that they want their share and I have to sell the property, am I obliged to give them the 50% share of the current price now or would I be able to use all of the sale price to fund a new property?I have always said that I would always make sure that they would get their father’s 50% share in the event of my death and the other 50% to my 2 adult children, this is what my partner and I had agreed to do when we purchased the property initially, on both our wishes and also on the wishes of my partners father. However his children may want their share sooner rather than later. Without my partner leaving a will I am not sure where I stand legally. Any advice you could give me would be gratefully received.

    Reply

    • Justin
      September 2, 2020

      Monique –

      Assuming 50:50 ownership and that there is no declaration of trust relating to the property, and as there is no provision in any Will, you have a right to occupy the property until it is sold, but can be required to pay half rent (reflecting your late partner’s half share in the property). Further, without good reasons (such as the need for the property to provide a home for young children) if your late partner’s family insisted, they could insist on the property being sold and taking their half share.

      Your case emphasises the importance of making a declaration of trust where you jointly own property, and making a Will, especially where you are not married or in a civil partnership. Without either a declaration of trust or a Will, I’m afraid you are in a very vulnerable position indeed: effectively at the mercy of your late partner’s children and their generosity.

      If you think it was your late partner’s intention that you should be able to use his half of the house – whether to live there rent-free or to use his share to buy another property – it may be worth talking to a specialist litigation solicitor about whether there is some means of making that wish reality; there are various possibilities (from implied trusts to promissory estoppel) that may be worth pursuing but you will need to discuss in detail what evidence you have that could support any claim.

      Good luck!

      – Justin

      Reply

  60. Marcus Millgate
    September 14, 2020

    Hi Justin
    When my father purchased his bungalow in Jan 2011 for £180000 he added me as a Joint tenant. This is his only home & he lived alone.
    Following a breakup I moved in with him between Nov 2013 until Sept 2016 when I purchased my home.
    In 2020, we agreed to sell up so he can downsize & be closer to town & be nearer me.
    Sept 2020, the bungalow is being sold for £262000 & a flat is being purchased for £140000.
    To avoid Stamp Duty we think it’s best to purchase it in his own name with his share of the proceeds & some savings as it would count as a second home.
    I believe my unexpected windfall will now be subjected to CGT. If it’s a lot, I’m wondering if I’d be better off gifting my share back to dad as sole ownership before sale is completed?

    Reply

    • Justin
      September 14, 2020

      This isn’t really about joint ownership but about tax.

      Yes, your share of the property would be liable to CGT in respect of the increase in value from 2016 (when the property ceased to be your principal private residence) and its sale. However, you would still have to pay the same CGT if you gave your share to your father – that would also be a “disposal” for CGT purposes just as much as a sale would be.

      It is, however, worth considering why you were a joint owner in the first place: was it so you would have a beneficial share (in which case that share is liable to CGT) or sor some other reason (when it may not)? Without knowing the reason(s) for him adding you as a co-owner, however, I cannot really comment further.

      I should also make it clear that I am no tax expert. There may be aspects I have misunderstood, overlooked or mis-applied, so it is worth checking with a CGT specialist.

      – Justin

      Reply

  61. Tracey
    October 3, 2020

    Hi Justin
    My mother and one of my brothers are joint tenancy on her property ( historical, when Dad died he convinced Mum this was the for the best that he went on the property! ) the property is mortgage free and he has made no contribution whatsoever to the purchase. My mother has now decided that she wants to convert to tenants in common and her to have it split so she owns at least 70% and then in her Will, her percentage would be split between myself and my other brother only, Would this be the best solution? and if so how do we register this percentage spilt when changing to tenants in common with the Land Registry?

    Reply

    • Justin
      October 3, 2020

      From what you say, your mother and Brother 1 jointly own the property as joint tenants, so that if either dies the survivor owns the whole property automatically. Your mother wants you and Brother 2 to end up with 35% each and Brother 1 to end up with 30%.

      Any joint owner can “sever the joint tenancy” to convert it to a tenancy in common by serving on the other joint owner(s) a “notice of severance” then applying to the Land Registry, with evidence of the service of the notice, asking the Land Registry to register a “trustee restriction” on the register.

      Of itself, this does not define the shares in which the beneficial interests in the property are held: it only warns the world that there is an underlying trust. In the absence of clear evidence (ideally, a Declaration oif Trust specifying the beneficial shares and any other relevant points) the law assumes the joint owners are equal beneficial owners, giving Brother 1 a 50% share. To reduce that to 30% and leave 70% in your mother’s ownership, a Declaration iof Trust (if Brother 1 coopoerates) or a court ordedr (if he doesn’t) would be needed. To get a court ordder, you would need clear evidence that your mother is entitled to a 70% share.

      If that is acjhieved, your mother can leave her 70% share by her Will – in your case, half (a 35% share of the whole) to you and the other haslf (35% of the whole) to Brother 2.

      I think that answers your direct questions, though I imagine the issue is how to get Brother 1 to agree he should only have a 30% beneficial share.

      – Justin

      Reply

  62. Mary
    November 13, 2020

    Hi Justin, I have a foreign joint bank account open with my husband(Luxembourg),now the bank is asking me to sign the settlement of the estate of my late husband to register in my name the whole account,should i do it or I can continue to use the account as it is?Its a share and current account.They put undertakes jointly and severally to hold the bank harmless from any claim,demand or damage that may be asserted against it with the regard to the execution of this order?

    Reply

    • Justin
      November 13, 2020

      I’m afraid I have no idea: my qualifications are in respect of English law, and I have no idea about banking law applicable in Luxembourg, so I cannot usefully comment

      Reply

      • Mary
        November 13, 2020

        ..no problem,thank you.

        Reply

  63. louise
    November 18, 2020

    Hi Justin, i live in a house which is owned by my dad and his brother as tentants in common. My parents also live at the property. It is a large house which has been split into two. It only has one title deed. My dad has a vested interest in his part and his brother has an vested interest in some of the part i live in. He hasn’t lived at the property for many years and that is why i live there with my family. He now wants to move back into the part he has a vested interest in. However my dad doesnt want me to move out. Where do i stand legally on this. Do i have to move out?

    Reply

    • Justin
      December 31, 2020

      Louise –

      As you are not one of the joint owners, you do not have a right of occupation. As a joint owner, your uncle does. Your father and your uncle would have to agree to you staying in occupation (which does not seem likely) and could insist on you paying rent if they do agree to you staying.

      However, this is likely to be a much bigger situation than just joint ownership rights: you may well have rights of your own that are not based on ownership (which you do not have) but on other legal aspects – such as promissory estoppel, perhaps.

      I suggest you speak to a local property litigation lawyer, to give them all the background, and let them advise you on the whole issue

      – Justin

      Reply

  64. Tony Williams
    November 22, 2020

    Dear Justin,

    May I say that you are providing a fabulous ‘free’ service – thank you so much

    I am in the process of finalising updated wills for myself and my wife. In so doing we will convert from joint tenants of our freehold (mortgage free) properties (2 of them – one of which we rent and we live in the other) to tenants in common (50:50) – and then take advantage of a ‘property will trust’ – one of several reasons for so doing being related to mitigating, to an extent, the potential residential care costs of the survivor, when one of us dies. A standard clause in such a will (relating to the survivor’s right to purchase a ‘replacement’ property in conjunction with the trustees [of which the survivor of us would be one] is shown below:

    ‘………………In purchasing such a replacement property or properties my ‘Trustees’ may join with any person in purchasing an undivided share of land………………’

    Would you be kind enought to please explain what this means in ‘plain speak’

    Last question please – I keep reading that a ‘property will trust’ will not be considered as being ‘viable’ (presumably by an ‘involved’ local authority) if it is taken out for the specific purposes of avoiding care home fees. In fact, this is one (but only one of several) of our reasons for so doing. Appreciate your informed comment on this matter too please (my wife and myself are in our early 70’s and currently have no particular health issues – physical or mental)

    Many thanks in anticipation and please keep up all the good work that you do,

    Sincerely,

    Tony Williams

    Reply

    • Justin
      December 31, 2020

      Tony –

      An “undivided share” is the situation where joint owners own property as “tenants in common” and is the appropriate way for the trustees to own the replacement property jointly with a third party, with the trust’s share in the property being being specified so that its value is preserved for the trust. Basically, the clause is saying that the deceased’s share in the property can be used to buy a replacement property jointly with another person (a son or daughter, perhaps), but only by way of a tenancy in common so that the ultimate beneficiaries do not lose their inheritance.

      It is correct that if the purpose of a transfer of property is to avoid paying one’s debts then that transfer can be challenged and undone. However, in this case you are ring-fencing *your* share of the house against *your wife’s* potential care home fees, so you are not seeking to avoid *your* creditors, and the provision is a perfectly legitimate estate planning option.

      – Justin

      Reply

  65. Marc Berger
    December 26, 2020

    Hello Justin
    You say that joint tenants “all parties together own the whole of the property as one legal person”. Does that mean that for TOLATA s.14 they have to have the consent of all the trustees to apply.: “Applications for order. (1)Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court for an order under this section.
    I note that Law of Property Act says: s.37 Rights of husband and wife. A husband and wife shall, for all purposes of acquisition of any interest in property, under a disposition made or coming into operation after the commencement of this Act, be treated as two persons.

    Reply

    • Justin
      December 31, 2020

      Marc –

      On the contrary: assuming there is nothing in any declaration of trust (or other evidence of the parties’ intentions when buying the property), if one joint owner wants the property to be sold they can normally force the sale (by applying to the court for an order for sale) – it needs all the owners to agree not to sell for the property not to be sold.

      – Justin

      Reply

  66. Michael Gill
    December 27, 2020

    I am in the process of dealing with solicitors. Oh how I wish they were as knowledgeable and as straitforward as you.
    My sister is in the process of inviting the court to retrospectively sever the joint tenancy my step father and my late mother (his wife of 55 years) shared. Their marriage broke down and step father had to come to live with me after my sister made untrue allegations about my (her) step father. Telling her 87 year old mother that he was having an affair with some woman she has never been able to identify. Shortly after she had poisoned her mother’s frail mind, she accompanied my mother to the solicitors. Mother made a will,leaving “her half of the house” to her daughter. But she never severed the joint tenancy. Sister (65 never left home) and is claiming for financial support from her mother’s estate. But in order to do that,first she has to show that mother had an estate to leave,hence the need to show the tenancy was severed because dad left home. If the court decided the joint tenancy had in fact been severed through dealings dad could end up losing,giving half his house to the stepdaughter who destroyed his marriage and paying her legal cost. He has been advised to “settle”. At 83 years old he really doesn’t need this. He is still grieving for his wife. So I guess the question is, can she Really do this and ball park, what chance of success might she have. .?

    Reply

    • Justin
      December 31, 2020

      Michael –

      This is dangerous territory for a conveyancing lawyer like me, as the litigation lawyers always manage to argue black is white, but here goes!

      Section 36 of the Law of Property Act 1925 states (in part) –
      [If] “any [joint] tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire or do such other acts or things as would , in the case of personal estate, have been effectual to sever the tenancy in equity, and thereupon the land shall be held in trust on terms which would have been requisite for giving effect to the beneficial interests if there had been an actual severance.”

      What this boils down to is that severing the joint tenancy needs –
      (a) Notice by one owner to the other(s) – the clearest and safest way
      (b) Mutual agreement of the joint owners to sever the joint tenancy – usually a joint application to the Land Registry to register a “trustee restriction” against the title to the property – or
      (c) A mutual course of conduct indicating that the joint tenancy was mutually severed

      Step (a) is unilateral; steps (b) and (c) are not. If you mother and step-father had *each* made Wills, leaving their respective shares in the property to their respective children (for instance), this would have been a “mutual course of conduct” inconsistent with a joint tenancy, and so would have severed the joint tenancy. However, if only your mother made that Will, especially if your step-father did not know of it, then I cannot see that there is the necessary mutuality of intent that section 36 seems (to me) to require.

      However, litigating the issue is risky (usually 50:50) and expensive (win or lose) so, while I hate the idea of being bullied into settling, an offer to settle is likely to be worth considering, if only as a shield against the costs of litigation – the litigation lawyers will no doubt be able to explain the details and merits of a “Part 36 offer” (nothing to do with *section* 36) if they have not already done so.

      A horrible position to be in – good luck!

      – Justin

      Reply

  67. MAP
    January 12, 2021

    Me and my partner are not married, but joint tenants is wanted – if in the very unlikely event of a split – with me putting down all the deposit, does it mean it can be “Gifted” back to me if said person decided to leave the property and no longer be party to the mortgage? I would assume paying some money towards this (ideally with a product transfer or further advance) to ensure she doesn’t leave with nothing. Or would I have to pay tax on the purchase?

    Reply

    • Justin
      January 12, 2021

      If you and your partner are buying a property in joint names but with you providing all the deposit and (I assume) you and your partner being jointly liable for the mortgage, I suggest –
      (1) You buy the property as “tenants in common”
      (2) you sign a declaration of trust to say that you are entitled to be repaid the deposit (or perhaps a proportionate share of the sale proceeds) and each of you is entitled to any other sale proceeds equally and giving each of you a right to buy out the other’s interest if you split up

      If you buy out your partner’s interest, the only tax that might be payable is Stamp Duty Land Tax, depending how much you pay to buy out that interest.

      I hope this helps

      – Justin

      Reply

  68. Sarah
    January 20, 2021

    Hi Justin, bit of a long story! my dad and stepmother brought the council house he had lived in for over 30 years before he met her, They brought the house from the council with full discount as dad had been a council tenant for over 30 years at that time, They brought the house in 1988 as joint tenants, in 2019 Dad was rushed to hospital after having a TIA, The day he arrived home my stepmother and her daughter was there along with carers who were there to access dad, I’m not exactly sure what happened as the carers wasn’t allowed to say to much but when I arrived dad was upset the carers told me the stepdaughter was really rude to your dad and it upset him, He then told me the stepdaughter called him a pig and hoped he rot in hell then continued to shout at him mums divorcing you and you have only got 10% of your house and we have 90% this upset my dad and he couldn’t understand why she would say that, my dad was 86 at the time and had just returned home from hospital, As dad was so concerned my sister obtained a copy of the deeds which a restriction had been put on in 2018 severing the tenancy, We asked dad if he knew anything about it as it was only put on the year before he didn’t no what it was about and said were joint tenants me and my sister had to explain to him that he was no longer joint but tenants in common he couldn’t remember signing anything other than a will, my stepmother said he did sign it and it is split 50/50 and me and my sister are his beneficiary’s but he just kept saying yes he signed a will, we asked our stepmother if dad could see the Declaration of trust that he signed just to put his mind at ease that it was 50/50 and not 90/10 but she said it was in her bank and she would get it out and show him which she never did, My dad sadly passed away 12th December 2020 and because she was next of kin her and her daughter made all the funeral arrangements and has not spoke or been in contact with us since dads funeral, My stepmother appointed two of her family members as executors to dads will so we have no clue to what his arrangements or wishes were upon his death, As they were now tenants in common are we entitled to ask the executors for a copy of dads will so we can be sure it is being followed as it should, we have not heard anything from them regarding dads will they have just cut us of completely and we don’t no what to do, Thank you.

    Reply

    • Justin
      January 21, 2021

      Sarah –

      You can get a copy of a Will once probate is granted, and set up a standing search to be told when probate is granted. See here: https://www.gov.uk/search-will-probate

      It may also be appropriate to lodge a “caveat” against probate being granted (if it has not already been granted.

      Bear in mind that the Will and probate simply provide the executors with authority to deal with whatever your father’s estate ended up consisting of: you may want to challenge a declaration of trust if it is inappropriate.

      I strongly recommend that you seek full advice from a specialist litigator who handles property disputes and estate disputes. This is not an area to dabble in.

      – Justin

      Reply

  69. Kat P
    January 20, 2021

    Hi Justin. I hope you can help me in what is a complex issue. Our parents owned two houses at a time, both of which were to be inherited on a 50/50 basis by my brother and I. A few years ago, the smaller of the two properties, which my brother had been living in, was signed over to him (gifted) as he wanted to do work to the house & the bank wouldn’t lend him the money unless it was his name on the deeds. Our father did so on the understanding that my brother would then ‘owe’ me half the value of the smaller house at what it was worth before he did any work to it (so that I didn’t benefit from any additional value the work might add to the house, understandably).

    Our father also stated that the value of the bigger house, in which my parents lived, would also be ‘frozen’ at what it was worth at the time my brother was gifted the smaller house, as he felt that this was the fairest way of ensuring my brother & I benefitted equally in the long term.

    Sadly, our father passed away recently and things now have the potential to be very complicated. The larger house was held as tenants in common, with both our Mum & Dad having Wills of their own, passing their respective halves equally between my brother and I. Mum is now in a nursing home, and so it is vital that one of us moves into the property as soon as the Will/Probate etc… is sorted, so that the Trust doesn’t try to force a sale or put a charge on Mum’s half of the house.

    However, our father did not mention the smaller house in his Will, and the fact that my brother ‘owes’ me my share of that. Instead, a letter of wishes was left, addressed to us both, in which our father confirmed what had happened to the smaller house, how much both houses were valued at at that time and that these were the values to be used so that I didn’t lose out financially and also, the amount that my brother owes me.

    My brother then informed me that he planned to buy me out of my share of my father’s half of the larger house, and move into it, but I said that I would like to buy him out instead. I felt that I had a right to stand up for myself, as my brother had also been left the family business, as well as having been gifted the smaller house. There was a bit of a stand-off for a few weeks & then I put two scenarios to my brother: 1) he could buy me out, as long as he also gave me the money he owes me from the smaller house, as outlined in our father’s letter of wishes, as without this, I wouldn’t have enough money to buy an alternative house (something I wish to do in order to provide myself with a stable home (I currently rent) and so that I would have something to leave my children); OR scenario 2) I would buy HIM out of his share of my father’s half of the larger house now, using my half of money that our father had also left, and when our Mum passes away, my brother can sign over his share of our Mum’s half, which would be ‘paid for’ by the money he currently owes me for the smaller house that our father gifted to him. (This is all clear as mud, I know!)

    It then transpired that despite telling me he was going to buy me out of my share of our father’s half of the larger house and move into it, he couldn’t afford to do so, nor could he afford to give me what he owes me for the smaller house. So it looks like scenario 2 is the best way forward, plus it will give my brother some cash to put towards extending his current home, which he said he wishes to do. My worry is that I am taking a gamble by paying him for his share of our father’s half of the house now, and allowing him to offset the money he already owes me against his share of our Mum’s half later down the line. It means that I will basically have to trust him to do this, as he could very well ignore the letter of wishes and refuse to repay me what he owes me OR to sign his share of our Mum’s half over to me. I am hoping that he won’t do either of those things, but I need to protect myself.

    To ask him to offset his share of our father’s house now against the money he owes me from the other house is problematic for me as I am on benefits after having to retire early due to illness, and so I need to use my inheritance money (as soon as it comes through) to buy my brother’s share, so that I can move into the house and make it my permanent home. It is also a more favourable way of doing it for my brother, having me buy him out now, as it will be money in his hand now.

    It is very complicated in more ways than one, as I am sure you will agree, and I have explained to my brother that if I buy him out of the first half of the house now, he would have to agree to signing over his share of the second half of the house when our Mum passes away, otherwise, I’ll have put all the work into getting our parents house into shape, own 75% of the house when Mum goes, and he could refuse to let me have his 25%, or refuse to offset it against the money he owes me.

    In addition, he could flatly refuse to pay me the money he owes me for the first house at all, as my father didn’t include it in the Will, and I don’t know if his letter of wishes will hold any sway if that happens (it’s a worst case scenario, I know, but I’m trying to protect my own interests as this is the only way I will have my own home). He could also ignore what my father has written down about the larger house’s value to remain at the value it was when the other house was gifted to my brother, and say that I have to buy him out at today’s market value instead (which is higher).

    Under normal circumstances, a Deed of Variation might be the best way forward for now, but I believe that a Deed of Variation can only be done if my brother wasn’t ‘compensated’ for signing his share of our father’s half over to me, so wouldn’t that mean that I can’t pay him for his share now? And secondly, what form of legally binding agreement could be drawn up to agree to signing Mum’s share over to me when she passes away, given that this would be a legal agreement now for something that won’t be his until our Mum passes away?

    It’s a total nightmare, and I really hope that you can understand what I am trying to get across to you.

    In closing, if there IS a way round this, can the solicitor that is dealing with our father’s estate act for both my brother & myself in drawing up some kind of agreement, or would I need to get my own solicitor, given that the one dealing with the estate is my brother’s solicitor as well as my father’s?

    I apologise for the very long post, but it is very complicated, and I feel like I am walking in a minefield.

    Reply

    • Justin
      January 21, 2021

      Kat –

      I definitely think that you and your brother each need to instruct your own solicitors (one for each of you) to document what is to be agreed, and that the solicitor handling your father’s estate should not try to act for you or your brother as well.

      I think that answers the question that your long post came down to, and I certainly suggest you instruct a solicitor to represent your interests as soon as possible.

      – Justin

      – Justin

      Reply

  70. Jasmine
    February 11, 2021

    Hi Justin. Me and my brother own our family home in which I live with my parents and my 2 children (I am married but my husband lives in a seperate house). Me and my brother are joint tenants. My brother got married 6 months ago and moved into a rental property. We would like to know what’s considered marital assets, in the case of joint tenants is it 50% of the capital?

    Our family home was bought in 2017 with the sale of previous family home that all 4 of us owned and then my parents gifted deposit their share to us. We would like to protect our one and only family home where my parents and I reside, in case of a future marital dispute God forbid. If we change ownership to tenants in common and draw up a trust deed with e.g. a 90/10 split (which my brother has no objection to as I am the one who pays mortgage and bills and I would make a will alongside leaving him my share upon my death), will his marital assets be then only the 10% in case of a dispute? Will the law ever question the unequal division or require evidence?

    My husband’s net worth is much higher, 3 times of ours hence I won’t need to worry about a marital dispute in my case or upon my death leaving the family home to my children as they will get much more from their father’s side. Hence me giving my brother preference over them and protecting my parents in their residence.

    I hope this makes sense. I look forward to your reply.

    Reply

    • Justin
      February 14, 2021

      Jasmine –

      If there is no declaration of trust, the law assumes that tenants in common own the property in equal shares, but this can be disproved: in your case by proving that your parents have their 2 x 25% shares to you alone, so you would claim 75% and your brother 25%.

      If you have a declaration of trust, you can specify 90%:10% as you propose. It is very difficult to go behind such a declaration and say the shares should be different; in effect, someone challenging the declaration would have to show it was the result of deception, lack of mental capacity, or similar.

      Having a declaration of trust is definitely well worth doing.

      – Justin

      Reply

  71. Michelle
    February 16, 2021

    If a property was owned by my mother but her boyfriend at the time but his daughter on land registry as Tennant in common then later mother passed away an in her will she leaves for 3 daughters an 4 grandchildren, the step daughter hadn’t lived there nor paid for renovation to increase property or paid bills etc is she still in titled to the full half

    Reply

    • Justin
      February 16, 2021

      I’m sorry, but I don’t understand the situation you are describing.

      Did your mother and her boyfriend jointly own the property as tenants in common in equal shares? If so, your mother could leave her half share to her family by her Will.

      I am not clear on how the boyfriend’s daughter is involved.

      Reply

  72. Sophie Dee
    February 28, 2021

    Hi Justin

    My partner and I owned a property as joint tenants for 20 years. We split up 15 years ago and he moved abroad. The house was £63K, for which I paid £18K + legal fees. He paid the rest of the mortgage as part of the custody agreement, the house is now mortgage free. I remain in the house with our daughter, now an adult. He does not reply to emails about his share. As he is remarried with a new family, I split the tenancy to tenants in common by sending him notice to his dad’s address by registered post in 2019. The Land Registry sent the new title. I believe that we are now 50% tenants in common. The house has been valued recently at £210 000.

    1 – It is reasonable to expect me to buy his share outat the current value or the value when bought the house? If current value, it would take me about 20 years to pay him off, until about age 75.
    2 -The house needs repairs (electrics, roof insulation and some cracks in walls). As co-owner, if he does not pay, would this be taken off the value of his share when I die?
    3 – If I make any improvements to the house whilst we are tenants in common, e.g. an extension or a new kitchen, would this be taken off the value of his share?
    4 – Can he transfer his share to our daughter for no consideration (according to his mum’s late wishes) whilst living overseas?

    I am reluctant to force a sale through the courts as I may lose the house since I cannot afford a mortgage for the current value. The idea of taking a loan to make improvements to add value which will then pass on to his new family, with my daughter eventually being tenants in common with siblings she does not know, is not a prospect we consider reasonable.

    Thank you for your preliminary advice/thoughts.

    Reply

    • Justin
      February 28, 2021

      Your reference to a custody agreement indicates there may have been court proceedings after you and your partner split us, in which case those proceedings should have dealt with your respective rights in the house.

      If not, then the law’s starting point for tenants is common is that they own the property in equal shares, though this can be challenged by evidence to the contrary or changed by a court if the circumstances warrant.

      Based on the underlying assumption, however, you would have to buy out your ex-partner’s assumed half share at today’s value, subject to adjustment for his share of the costs of necessary maintenance.

      In the circumstances, I think you need to consult a property litigation solicitor to try to improve your share in the property from merely one-half.

      Reply

  73. John Graham
    March 1, 2021

    Hello,

    I own a property purchased before marriage which is rented out. If I were to add my spouse to the ownership of the property, do we have to have a new rental agreement with the tenants?

    Regards

    Reply

    • Justin
      March 1, 2021

      Residential tenancies are not my area of work, but on general principles, no – look at it thisway: if you could in effect revoke a tenancy agreement by transferring the freehold into joint names, no tenant would be safe!

      Reply

  74. Brian
    March 4, 2021

    Hello Justin

    My ex and I bought a property together. Only her name is on the legal title but everything has been split 50/50 from deposit, upkeep, mortgage etc. We paid, and still pay, all costs through a joint account.
    We broke up on 2017 and I moved out; I needed to move back after a few months but she said no and changed the locks, as it transpired she had another partner living with her. I continued paying £450 (50%) towards the property per month after moving out.

    My ex has dictated the use of the flat since I’ve not lived there and rarely consults me unless I will find out some other way.
    She moved out in 2018 and let it, with the rent going into the joint account. She withdrew the profits – after costs had been paid – so at least I didn’t need to contribute. I withdrew £450 ‘rent’ and paid it back in as ‘mortgage’ each month.

    She emailed me at the start of 2020 saying her and her partner were moving back in temporarily for work and in order to sell the property, asking me to pay £450 again. I said no and that her partner was now a tenant and should pay me/us rent; which I would use to cover my share. She agreed I didn’t need to pay but ignored the request for a tenancy agreement for her partner or that her & her partner should pay me a market rate for my 50% – I continued to withdraw and repay the £450 as rent/ mortgage and sent an email to sever and become Tenants in Common as I was concerned her partner could gain an interest in the property that would impact my share.

    Due to cladding issues it transpires our property will not sell until it’s rectified which may take 2-4 years according to the freeholders.
    I have asked her to buy me out since this situation has become longer term and get told that it will sell ‘any minute’. It won’t because no one can get a mortgage on it.

    This temporary arrangement has been a year of my ex her partner living for cheap (at cost) and me contributing 50% of any costs (new flooring, repairs, etc.)
    I think a year has been reasonable for a ‘temporary’ agreement but now I would like to start receiving rent in order to cover the costs of the upkeep.
    My position of investor/ landlord only is a position she put me in by refusing my occupation; even when she moved out. I need to move back to Manchester in September and said perhaps she could live there in the property until then and then if it wasn’t sold (it won’t be) I could move in from September – she said no.

    As they will be likely living there for the next 2-4 years, I would like to know if I can act on my 50% beneficial ownership?
    – Do I have the right to recieve rent from them for my 50%? or
    – Could I let the 2nd bedroom?

    Thank you for any thoughts you might have

    Reply

    • Justin
      March 4, 2021

      From what you say, despite your reference to having 50% beneficial ownership, you do not actually have anything in writing and are not registered as a joint owner, so currently you have nothing: you are not even in occupation.

      You do not say whether your ex is ex-wife or ex-partner. If ex-wife you would have rights enforceable through the family courts – unless she really is your ex-wife, not just separated: if a decree absolute of divorce has been pronounced, with no financial order, you have huge problems.

      You need to identify, establish, protect and if necessary enforce whatever rights you have. Do do this: if you and your ex are/were married, speak to a family lawyer; otherwise, speak to a property litigation solicitor.

      I suggest you do so without delay, before your position worsens.

      – Justin

      Reply

  75. Seean
    March 6, 2021

    Hi Justin,

    I am selling my flat and the co freeholder is not signing the transfer of freehold to the buyer name/co freeholder name.

    The leasehold is a long but if the freehold is not transferred than the sale might not go ahead.

    Is there any way to get the co freeholder to sign the transfer?

    If refused, can I claim damages from the co freeholder for the loss of income due to the break in sale.

    Thanks

    Reply

    • Justin
      March 6, 2021

      If I understand correctly, you (alone) own a leasehold flat in a building and (jointly with the leasehold owner of the other flat in the building) a 50% share of the freehold interest in the building; you are selling your flat, and want your co-owner of the freehold to transfer the freehold to him/herself and the buyer of your flat, so that your buyer takes your place as co-owner of the freehold.

      In these circumstances, even without a Declaration of Trust covering the jointly-owned freehold, this seems clearly to be the purpose of the joint ownership of the freehold: to transfer its ownership so that it is always owned by the leasehold owners of the flats in the building.

      As such, I cannot see why the joint owner of the freehold is not co-operating: they should incur no cost (apart from having to prove their ID for Land Registry purposes) and it is potentially disastrous for them were you to sell your flat but remain as co-owner of the freehold – once you disappear, the co-owner will be unable to transfer the freehold when he/she (or their family) come to sell their flat, will be unable to insure the building, will be unable to extend the lease periods, etc. They are shooting themselves in the foot. Of course, your buyer would be in the same position, and would therefore be unlikely to proceed with their purchase, losing your sale.

      I suggest you point this out to them, invite them to co-operate and, if they refuse, ask why. If they still refuse to co-operate and cannot give a good reason, you have excellent grounds for going to court to get an order for sale, including an order requiring someone else (probably your lawyer) to sign the transfer of the freehold in the name of the co-owner, and with the costs of the court action being payable by the co-owner and chargeable against their flat.

      I hope that, if you point this out to your co-owner (direct or through your conveyancer) they will see sense and co-operate.

      If not, and you do lose your sale, I think you can indeed claim your losses from your co-owner: under English law, joint ownership of land is treated as a trust – the legal owners hold the legal title to the property on trust for the beneficial owners (in this case, the same people). For your co-owner to refuse to carry out the purposes of the trust (in this case, transferring the freehold ownership so that it is in the names of the leasehold flat owners) then they would be in breach of trust, causing you (a beneficiary) loss. Trustees whose breach of trust results in loss to beneficiaries are personally liable for that trust.

      I hope it does not get that far.

      Good luck!

      – Justin

      Reply

  76. Lynn
    March 6, 2021

    My sister, brother and myself are tenants in common for a holiday flat (not rented out) with unequal proportions ie two of us have 2/9ths and one has 5/9ths. It was left to us by our father but one of us took out a loan to cover the shortfall in the estate so we could keep the flat. At the moment the one with the greater proportion is paying the equivalent ie 5/9ths for all the bills including things like roof repairs. We do not have anything in writing such as a declaration of trust to cover any of the arrangements but this does not seem a fair arrangement in terms of the bills. What are the usual arrangements in these circumstances?

    Reply

    • Justin
      March 7, 2021

      It is a matter for agreement between the three of you, but I suggest that bills for things such as repairs, improvements and buildings insurance should be borne in proportion to your shares in the property (the one with the larger share will benefit more when the (repaired and improved) property is sold and has a bigger investment to insure), while utilities, etc, could be borne according to the use you each get out of the property, alternatively one-third each for simplicity.

      If, however, the flat was left to the three of you equally, with the larger share compensating for the loan taken out to avoid having to sell the flat, there is an argument for saying that sibling should not suffer as a result of taking out that loan, and all bills should be shared equally. However, in that case I think it would be fairer for that sibling not to have a 5/9ths share of the value, but instead to be entitled be repaid the cash value of the loan (perhaps plus interest) out of the sale proceeds before the balance is split equally between all three.

      These are just my thoughts, though, and the three of you may agree on a different arrangement. Whatever arrangement you do agree on, I strongly recommend you set it out in a Trust Deed, so there can be no doubts or disagreements later.

      – Justin

      Reply

  77. anna
    March 9, 2021

    My father passed away last year and left my stepmum in their home. They have Wills (Tenants in Common) although I have not seen my father’s Will one year on – which is odd but I had put down to covid. I understand that stepmum is allowed to stay in the house until she passes and then the estate would be shared between us 5 step children. Sadly they took out an equity release deal some years ago who have a large claim on property too. My stepmum now wants to sell and move away, she realises that once the equity release company have their share not enough will be left for her to buy another property. We have heard that she wishes to get her granddaughter to buy a house using all the proceeds of the house sale as a deposit (less the equity release company portion) Can she do this as the 5 stepchildren are named in the will? What can be done to protect the wishes of my father to share proceeds with children. Many thanks.

    Reply

    • Justin
      March 9, 2021

      This all depends on the terms of the Will, which will say what powers your step-mother has to use your late father’s share of the house to fund the perchase of a new home for herself.

      Without seeing a copy of the Will, it is impossible to say.

      – Justin

      Reply

  78. Bruce Thorne
    March 9, 2021

    My wife and I own our house outright with no mortgage. Upon the advice of my brother we changed our deeds to Tenants in Common to potentially avoid care home fees being levied against the whole property if one of us goes into a care home. We did not realise that we would have to change our wills but since found this out. Do we simply ask a solicitor to make the change to our joint mirror wills or does it additionally involve the drawing up of a trust document?

    Reply

    • Justin
      March 9, 2021

      It can all be done by changing your Wills – inserting a clause that in effect “ring-fences” each half share in the house so that it passes to (I presume) your children, rather than to the survivor of you, when the first of you dies. There are some extra provisions to add, but that is the crux of it.

      Reply

  79. Desmond Cripps
    March 10, 2021

    My wife own’s half of the house we currently live in with her mother (who was living there) owning the other half. When her mum passed away we discovered that she had left her half to our 3 children (her grandchildren) and not her daughter! This is currently being held by the executors of her will as trustees.
    The youngest of the 3 children is about to turn 18 and they are all happy to sign their share back to mum but how do they do this and what are the pro’s and con’s of doing this?

    Reply

    • Justin
      March 10, 2021

      This is an estate (tax) planning issue rather than a joint ownership one.

      If the grandchildren want to give their interest in the house to their mother as they have their shares vested in them, they can do so, but there will be a CGT liability as a result of each gift and then potential IHT liability as they inherit the house back from their mother. The gift direct to the grandchildren was presumably intended to avoid this double tax liability (as well as securing the half share of the house for the grandchildren).

      If the terms on which the grandchildren hold their shares allow you and your wife a suitable right of occupation, perhaps including the right to use your late mother-in-law’s share towards the cost of buying a replacement home for you and your wife, I would question whether there is any need to make any changes.

      Certainly, you should not make any changes without assessing the tax consequences and whether they are acceptable.

      – Justin

      Reply

  80. Jim
    March 10, 2021

    Hi Justin,

    I am purchasing a property with my partner as tennants in common. Shares 75% to 25% in my favour due to deposit contribution. This was recorded clearly on the JO form.

    We will be paying the mortgage 50:50.

    In the absence of a declaration of trust and the house is sold at some point in the future. Will those respective shares be honoured ? I.e. are they legally binding ? Where are these shares recorded ?

    Thank you

    Reply

    • Justin
      March 11, 2021

      The Land Registry’s form JO (“Trust Information”) is a very simple form of Declaration of Trust, giving three options for joint legal owners of land –
      – to hold the land as joint tenants (for themselves)
      – to hold the land as tenants in common on equal shares (for themselves or others or a combination) or
      – to hold the land as tenants in common in unequal shares, which are to be specified in the form (for themselves or others or a combination)

      If the form is completed appropriately and signed by the joint owners, it is the basic declaration as to which the beneficial interest in the property is held on trust by the legal owners.

      The details are not shown on the publicly available title registers, which effectively only show whether the legal owners hold the property as joint tenants for themselves or as tenants in common in some way (whether equally or unequally, and whether for themselves or someone else or a combination) – for those details, you need to refer to the form JO, which should therefore be kept safely, with copies held by the beneficial owners, in the same way as a more detailed Declaration of Trust.

      – Justin

      Reply

  81. Steve
    March 18, 2021

    Hi Justin,

    My in-laws have been legally separated for many years, but not divorced. MIL lives in a council property, FIL owns a flat (c£275k) – sole ownership. He has been diagnosed with a terminal illness (not imminent) and has in his Will for the property to be split equally between the MIL and their 2 adult kids. Would making any changes in tenancy of flat make disposing of flat on death easier, in terms of tax implications. Ultimately, kids want their mother to buy the council property with the sale of the flat. I appreciate there is a need for some tax planning here, as “legally separated” seems to complicate matters.

    Many thanks.

    Reply

    • Justin
      March 19, 2021

      Steve –

      If the flat is to be sold in the near future, and the proceeds distributed to the beneficiaries, it would make sense for the flat to be left in your father-in-law’s name and sold by the executor(s) of his Will – any increase in value between the probate value and the sale price would be subject to IHT (the rate depending on the IHT status of the estate as a whole). If, however, the flat is to be retained, it is appropriate to transfer ownership to your mother-in-law and the two children, to be held as tenants in common: 50% for the mother-in-law and 25% for each of the children. Any increase in value would be subject to CGT in the hands of the relevant beneficiaries and would be calculated on the basis of their individual circumstances.

      I hope this answers your query.

      – Justin

      Reply

  82. heather titley
    March 24, 2021

    Hi my partner and I are tenants in common on our house. Mortgage cleared. I owe 67% and he owes 33% – in the last year we have paid out over £10k on repairs, which we split 2/3rd to me, 1/3rd to him. Now we are further improving the house by installing a wood burner, 7 new interior doors and landscaping the top garden. Should I still be paying 2/3rds of these bills?

    Reply

    • Justin
      March 25, 2021

      Assuming there is no Trust Deed covering the point then I would think that improvement costs should be split in proportion to your shares in the property (67:33) as you will benefit from the improvements in those shares, while repairs and outgoings should be split 50:50 (assuming you are both living there) as you both benefit equally from them. Sometimes, of course, it is difficult to distinguish repairs and improvements.

      – Justin

      Reply

  83. Brian
    March 25, 2021

    Hi, Can I just ask a question as to selling my house… My wife died 2 years ago but she is still on both the mortgage deeds and the Land Registry. Can I still sell the house and deal with all the changes that need to take place at the same time ie.. transfer of deeds etc…… what would be an estimate of the cost involved…?

    I also have another question…

    My new partner, wants to sell her property so that we are able to buy a property together… Her situation is different, she had a previous partner (not married) but he left the house over 8 years ago and has never paid towards the house since that time… (question) he is on mortgage and Land Registry but she hasn’t a clue where he has moved to…? She is from Lithuania and doesn’t understand what she needs to do to sell her property, being as she has no contact with him and doesn’t even know if he has gone back to Lithuania…?

    What legal process does she need to follow in order to sell her house..?

    Many thanks in advance

    Reply

    • Justin
      March 26, 2021

      As far as your house is concerned, if you and your late wife owned the property as joint tenants at her death, you automatically became the sole owner on her death,and can sell the property in your sole name just by producing your late wife’s death certificate.

      If you and your late wife owned the property as “tenant’s in common” (in which case, there would be a “trustee restriction”, saying a sole proprietor cannot give a valid receipt for capital money) there are two aspects to consider –
      1: What happened to your wife’s beneficial share on her death? It will have passed in accordance with her Will, if she left one, or in accordance with the rules of intestacy if there was no Will
      2: You would need to appoint a co-trustee in the Transfer of the property to the buyer, so that you and your co-trustee can give a valid receipt for the purchase price; you and your co-trustee would then need to deal with your late wife’s share in accordance with item 1 above

      As for your partner’s house, she will need to apply to the court for an order –
      (a) identifying how the proceeds from the sale of the house are to be split between her and her ex-partner – the fact that he has not contributed does *not* mean he has no beneficial interest in the property and
      (b) authorising her (probably with a co-trustee) to sell the house without needing her ex-partner’s involvement and
      (c) specifying what should be dome with her ex-partner’s share of the sale proceeds until he is tracked down – probably it should be paid into court to await his appearance.

      Your situation is fairly straightforward conveyancing; your partner’s is much more long-winded and she will need to instruct a property litigation lawyer.

      I hope this helps.

      – Justin

      Reply

  84. emma
    March 25, 2021

    Hi, seeking advice on behalf of patient,

    they have recently declared bankrupty without telling any family members, and it has come to light that they could be ‘tenents in common (4 way split) on a property currently still being lived in by the original owners; they are trying to find out what this means – they didn’t know about the ‘TIC’ and the persons who arranged the TIC are not aware of the BRO. they are petrifed now, Will the house be sold to cover the BRO? and the tenents homeless?

    Reply

    • Justin
      March 26, 2021

      The patient who is bankrupt has whatever their beneficial interest in the property might be as one of their assets which falls under the control of the trustee in bankruptcy, who will want to sell it to realise its value. In the absence of a Trust Deed saying otherwise, any of the co-owners (including the trustee in bankruptcy on behalf of the bankrupt) can insist on the property being sold and the sale proceeds split between the beneficial owners in proportion to their beneficial shares. However, the more normal course of action is for the co-owners to buy out the bankrupt’s share from the trustee in bankruptcy. The steps to be taken are –
      1: Identify the bankrupt’s beneficial interest in the property; if there is a Trust Deed, this should specify it; if not, the starting point is an assumption that each beneficial owner has an equal share, though this assumption can be disproved if there is evidence to the contrary
      2: Agree the value of that beneficial share with the trustee in bankruptcy; if it is a one-quarter share, the value is probably one-quarter discounted by (say) 10% to reflect the fact that is a minority share; you can also try deducting an appropriate share of the notional costs of selling the property (estate agents’ commission and legal fees) as the trustee in bankruptcy is saving that share of those costs
      3: The co-owners pay over the agreed amount in exchange for a transfer of the equity in the property from 4 names to 3, with the legal title being transferred at the same time.

      I hope this helps

      – Justin

      Reply

  85. Mrs W
    April 10, 2021

    Hi Justin,

    My husband is tenant in common with his father after his mother left her share of the house to him 15 years ago. He has never made any claim to the house and assumed his Dad would live there as before, for as long as necessary. However his father is 84 and due to a recent spinal injury is now disabled, and we along with carers and medical professionals are caring for him. Some time ago he gave a set of keys to a friend who we have trust issues with. We have asked for the keys back but he has refused and my father-in-law says it doesn’t matter as he’s his friend and wants him to keep them, and we’re not to upset him. We know he has been in the house to see Dad, despite covid restrictions and specifically being asked to stay outside. Before his injury my father-in-law used to go away a lot and his ‘friend’ had been going in the house to keep an eye on things, even though we went in every couple of days. When he was in hospital, the friend also took a letter addressed jointly to my husband and his Dad, and sent it on to the friend Dad had been staying with when he was admitted to hospital, who opened it and passed the info on to my father-in-law; this was a financial statement for a substatial insurance policy and was private. My father-in-law doesn’t think this is wrong and says he was only trying to help! Does my husband have any legal rights regarding access to the house? We have also discovered that the email address and passwords on his utilities accounts were in the friend’s name, although the accounts are still registered to my father-in-law. What rights does my husband have considering his Dad is deemed to be of sound mind and we do not want to control his life or take anymore of his independance away?

    Thank you.

    Reply

    • Justin
      April 11, 2021

      The situation as you describe it involves much more than just joint ownership of the house and, depending on the seriousness of the situation and your father-in-law’s mental capacity, the appropriate course of action seems to range from your husband having a heart-to-heart talk with your father-in-law to him involving social services (if you father-in-law is in need of protection against his friend) even to involving the police (if you suspect criminal activity).

      As far as the joint ownership point is concerned, each joint owner has a right to occupy the property – though your husband would not want to encroach on his father’s home, of course – and to allow others access for legitimate purposes.

      – Justin

      Reply

  86. Catherine
    April 19, 2021

    Dear Justin,
    I hope you are able to assist me. My mother passed away this year and her only assets are her share of properties (2), which I believe are owned outright by my parents as Tenants in Common.
    As she does not have any other funds in her estate to cover her credit card bills, will my father be forced to sell one of the properties to pay off the debts?
    Many thanks in advance.

    Reply

    • Justin
      April 20, 2021

      Catherine –

      Sorry to hear of your mother’s passing – always a difficult time, whatever the individual circumstances.

      Her debts are payable out of her estate, which (from what you say) comprisesher interests in the properties. If her estate is insufficient to pay her debts, then her estate is insolvent, but your father does not need to use any of his own funds/assets to pay your mother’s debts.

      However, because your mother’s estate comprises her interests in the properties then, unless she and your father had already agreed otherwise (eg: that neither one of them could force the other to sell), her executor/administrator is obliged to realise her assets (to raise funds to pay her debts) by insisting on one or both of the properties being sold.

      Depending on the terms of any Will she left, her interests in both properties might anyway need to be realised in order to distribute her estate in accordance with her Will (or the rules of intestacy, if there is no Will). This would depend (a) on the existence and terms of any Will and (b) the family’s circumstances if there is no Will.

      As your mother’s interest in one or both properties must be sold, if your father can afford to buy it/them, then he can do so – and presumably he is the main beneficiary anyway.

      I suggest you arrange a meeting with a local solicitor who handles the winding up of estates in order to find out exactly what needs to be done in your particular circumstances.

      I hope this helps.

      – Justin

      Reply

  87. Isabelle
    April 30, 2021

    Hi, if two people own a house as tenants in common (50/50) with no mortgage on it, can one of them give away their share to another person without the consent of the second owner?

    Reply

    • Justin
      May 2, 2021

      Assuming there is no Declaration of Trust or Trust Deed between them that prohibits this, yes.

      There is a practical problem, in that changing the identity of the joint legal owners from A and B to A and C requires the cooperation of A: a transfer of title would need to be signed by A and B – and possibly by C – and if A refuses you don’t really want the trouble and cost of going to court.

      In that situation, the remedy is for B to transfer his/her 50% beneficial share to C, who then serves formal notice of the transfer on A. A and B would then hold the legal title as trustees for A and C, who are the beneficial owners.

      – Justin

      Reply

  88. Rebecca
    May 10, 2021

    Hi – i own a flat under a joint leasehold with a mortgage with my friend. We are in a fix term mortgage with three years left, My friend now wants to move abroad. If we remortgage there is a 10k penalty fee for leaving early. Mortgage provider wont transfer the mortgage solely on my name as i don’t meet the affordability criteria. My friend has asked if i pay him a portion of his deposit and potential profit upfront and take over all costs and unofficially buy him out he will leave the flat to me and walk away. In doing this he will still be named on lease and mortgage. Although he is a good friend 3 years is a long time, if we put an agreement in place between us would this be enforceable if something were to happen, i.e when i come to actually sell say he wants to claim his share will the agreement cover us. What are the ways around it?

    Thank you

    Reply

    • Justin
      June 7, 2021

      In a word, “Yes”: a properly drawn up agreement would be enforceable. However, you should consult a local property lawyer to make sure the agreement is properly drawn up. They will probably also get your co-owner to sign now a Transfer deed so that, when the three year wait is over, you have all the paperwork to file at the Land Registry to transfer ownership of the property to you, without having to track down your co-owner again.

      – Justin

      Reply

  89. Louise
    June 6, 2021

    Hello please help me , my mums house is in her name with my brother and myself , there is a trust that says my brother can live there as long as he lives then the money goes to the 5 grandchildren equally
    Mum is in a care home getting close to end of life
    Will we need probate when she passes , I’m so worried this will be expensive and have nightmares me house here will be taken etc
    I have looked up mums property on land register
    It also says no disposition by a sole proprietor of the registered estate except a trust corporation under which capital money arises is to be registered unless authorised by a order of a court This scare me too many thanks for your help

    Reply

    • Justin
      June 7, 2021

      From what you say, the house is registered in the names of you, your brother and your mother as trustees for the grandchildren, subject (presumably) to both your mother and your brother having a right to live at the property for as long as they want. Depending on when the trust was created, this might have no real effect on your mother’s estate, but it is something you should discuss with a local probate/trust lawyer, so the details can be collated and the exact position worked out.

      The restriction against a disposition by a sole proprietor is the standard “trustee restriction” which is to be expected where a property is held in trust, and is nothing to worry about.

      – Justin

      Reply

  90. Jane
    June 30, 2021

    Hi, my uncle passed and left his share of tenancy in common to his adult children. He also stated for my aunt not to be forced to sell the property and to only give her approval of this in writing, and to reside at the home rent free as long as she desires. she wants to rent out the property and live with her sister, can she do that given her share is 50%? her sons want her to sell but she is not ready to let go of her home of 50 years, I hope she has a right to hold on to it.

    Reply

    • Justin
      July 1, 2021

      Jane –

      I think you have answered your own question: your aunt has the right to live at the property, rent-free. However, if she moves out, she cannot stop the other joint owners insisting on selling the property.

      – Justin

      Reply

  91. Simon Cornelius
    August 3, 2021

    Hi Justin,

    My two sisters and I inherited our family home which is currently rented out. We are tennants in common.
    I would like to sell the house but my sisters do not.
    I have suggested that they buy me out but they are unwilling to do so.
    Is there anything I can do to force a sale or is there some other solution to this dilemma?
    Thank you.

    Reply

    • Justin
      August 3, 2021

      Simon –

      Legally, you are entitled to force the sale of the property: your two sisters do not “outvote” you because they are two to your one: you and they are trustees for sale with power to delay the sale while you all agree to this. However, if any one trustee wants to sell, then the others must comply.

      If necessary, you could force the issue by applying to the court for an order for sale, then implementing that. However, that would cost a lot of money *(which your sisters would have to pay, if necessary out of their shares in the property when it is sold), so it would be crazy for them to put you to this extreme measure: they would just be wasting their own money.

      The sensible thing for them to do is to buy you out, if they can afford to, or cooperate in the sale of the property to a third party in order to minimise their expense.

      This does not apply where there is a Declaration of Trust in place that stops one co-owner from forcing a sale, or – in appropriate circumstances – if there are other factors involved (such as young children of co-owners living there). However, in a case like this where an investment property has been inherited and there is no provision to the contrary in the Will or in a Declaration of Trust, one co-owner can force the others to sell.

      I hope this helps.

      – Justin

      Reply

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