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  • FIRST POST
    • ceaserandnewton
    • By ceaserandnewton 9th Jun 17, 9:54 AM
    • 11Posts
    • 1Thanks
    ceaserandnewton
    Deed - Restriction Clarification
    • #1
    • 9th Jun 17, 9:54 AM
    Deed - Restriction Clarification 9th Jun 17 at 9:54 AM
    Hi,
    I’m hoping someone here may be able to help me out.

    My Mother sadly passed away recently. She was living with another guy but was still married to my Father.

    She left a will in which she left everything to my Father. My Father and I have since obtained the Grant of Probate.

    The property they lived in has the Deed which I’ve uploaded linked to it as an official restriction at the land registry.

    The only problem I have is that I don’t understand exactly what this Deed means in terms of what, if anything forms part of my Mothers Assets.

    My understanding of it is that my Mother is entitled to half the value of the property?

    Code:
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Page 1
    • G_M
    • By G_M 9th Jun 17, 11:57 AM
    • 39,682 Posts
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    G_M
    • #2
    • 9th Jun 17, 11:57 AM
    • #2
    • 9th Jun 17, 11:57 AM
    Can't read the image.

    Who is the registered owner?

    Is there a Charge/mortgage?
    • ceaserandnewton
    • By ceaserandnewton 9th Jun 17, 12:03 PM
    • 11 Posts
    • 1 Thanks
    ceaserandnewton
    • #3
    • 9th Jun 17, 12:03 PM
    • #3
    • 9th Jun 17, 12:03 PM
    Hi Thanks for the Reply, Your need to out http// in front of the links and put them into a web browser.
    • G_M
    • By G_M 9th Jun 17, 12:12 PM
    • 39,682 Posts
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    G_M
    • #4
    • 9th Jun 17, 12:12 PM
    • #4
    • 9th Jun 17, 12:12 PM
    No. You need to put www. in front.

    Who is the registered owner?

    Is there a Charge/mortgage?

    Is 'Mrs Penny' your mother? Is Mr Bloggs the 'other guy'?
    • xylophone
    • By xylophone 9th Jun 17, 12:30 PM
    • 21,659 Posts
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    xylophone
    • #5
    • 9th Jun 17, 12:30 PM
    • #5
    • 9th Jun 17, 12:30 PM
    http://www.mindatrest.co.uk/blog/how-to-tell-if-property-is-owned-as-tenants-in-common
    • 00ec25
    • By 00ec25 9th Jun 17, 2:58 PM
    • 4,103 Posts
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    00ec25
    • #6
    • 9th Jun 17, 2:58 PM
    • #6
    • 9th Jun 17, 2:58 PM
    the (validly signed and witnessed) deed states that Mr Bloggs purchased a property in 2002 but the deed has been done to establish that Mr Bloggs holds the property on trust for Mrs Penny - obviously OP has overwritten the document with fake names and presumably Mr is the lover and Mrs is OP's mother.

    the first clause of the deed expressly states that Mr Bloggs holds the property on trust and upon sale of the property the net proceeds will be split equally as beneficial joint tenants between Mr Bloggs and Mrs Penny

    the second clause of the deed requires Mr Bloggs to register a restriction with the Land Registry to the effect that the property cannot be sold without consent from Mrs Penny (or her personal representatives)

    that is all the deed says.

    it would therefore appear it has indeed created a 50/50 tenancy in common

    Op now needs to establish if Mr Bloggs retains a life interest and therefore the OP's father, as beneficiary under mother's will, can or cannot force an immediate sale of the property and thereby release the share of the estate the father has inherited. If Bloogs retains life interest the sale will be delayed and OP's mother's estate will have to include half of the value of the property in the probate declaration, but may not be able to convert that to cash for sometime yet
    Last edited by 00ec25; 09-06-2017 at 3:05 PM.
    • ceaserandnewton
    • By ceaserandnewton 10th Jun 17, 9:23 AM
    • 11 Posts
    • 1 Thanks
    ceaserandnewton
    • #7
    • 10th Jun 17, 9:23 AM
    • #7
    • 10th Jun 17, 9:23 AM
    Thank you for the Replies. I have a solicitor who's being cagey and saying there might be a case, but he said the Deed is badly written.

    The bit that confused me is where it says

    "in equal shares as joint beneficial tenants"

    Normally Joint beneficial tenants wouldn't be listed as a restriction, but on the other hand, that phrase normally means one share passes to the other upon death.

    I'm really confused!
    • 00ec25
    • By 00ec25 10th Jun 17, 9:36 AM
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    00ec25
    • #8
    • 10th Jun 17, 9:36 AM
    • #8
    • 10th Jun 17, 9:36 AM
    Thank you for the Replies. I have a solicitor who's being cagey and saying there might be a case, but he said the Deed is badly written.

    The bit that confused me is where it says

    "in equal shares as joint beneficial tenants"

    Normally Joint beneficial tenants wouldn't be listed as a restriction, but on the other hand, that phrase normally means one share passes to the other upon death.

    I'm really confused!
    Originally posted by ceaserandnewton
    not sure what you hope to get from posting here then on that basis. Go see another lawyer for a professional second opinion.
    - clause one establishes the 50/50 split
    - clause two records the restriction

    surely the intent of the deed was to record a tenancy in common? Or is your father now refusing to acknowledge your mother's estate has a claim on the value of that property?
    • ceaserandnewton
    • By ceaserandnewton 10th Jun 17, 9:57 AM
    • 11 Posts
    • 1 Thanks
    ceaserandnewton
    • #9
    • 10th Jun 17, 9:57 AM
    • #9
    • 10th Jun 17, 9:57 AM
    Hi ooec25,

    Thank you for taking the time to reply.

    We all know what most solicitors are like, unfortunately mine has a fin on his back but I'm sort of stuck with, he does get the job done, but drags it out a bit.

    I'm worried there might not be any claim to the property and I'm just wasting time and money, or if I can find out for for sure there is a claim then I can tell him to get on with the legalities.

    I'm just trying to understand as much as possible so I'm not blind to the situation, it makes me feel better that I know what's going on, also means if I feel my solicitor is dragging his feet to the point I need to say something to him.

    You say it appears to create a 50/50 tenants in common. So you think the part which mention "Joint Benerficial Tennants" is irrelevant?
    • getmore4less
    • By getmore4less 10th Jun 17, 10:22 AM
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    getmore4less
    Normally when you own a property as joint tenants there is no need for any restriction as all parties are named as legal owners and need to agree a sale.

    The key to progressing this is what does Mr Blogs think?

    If there is agreement it should be straight forward.

    Has the mortgage been cleared yet?
    • ceaserandnewton
    • By ceaserandnewton 10th Jun 17, 10:38 AM
    • 11 Posts
    • 1 Thanks
    ceaserandnewton
    Hi,

    Mr Bloggs isn't aware we know yet.

    2 days after my mother passed, he attempted to apply for probate using a will in which he was the sole benerficary.... even though my mother had two sons....

    Anyway, his will has been disproved in the high court and my Father and I have been awarded Grant of Probate.

    There is no agreement and I assume there is still a mortgage outstanding.

    I think I will need to speak to solicitor, he seems to think there may be a case but wouldn't really go into detail.

    I think it is so to assume Mr bloggs won't be to happy if we attempt to obtain the 50% share due to my late mothers estate.
    • getmore4less
    • By getmore4less 10th Jun 17, 10:49 AM
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    getmore4less
    What did she put into the place when it was bought, any evidence she was paying towards the mortgage.

    one interpretation could be they were joint tenants but if sold(while alive) the was a 50:50 beneficial interest in the proceeds.


    I would check there is the restriction in place, typical TIC restrictions are open(no sale by sole proprietor) and not named.
  • Land Registry representative
    Legal advice is certainly required here as the deed and its legal importance seems key to what interests exist here.

    We register the legal ownership so it is important to understand who is registered and how. The restriction in the deed is not the more common form A restriction, and it's the form A that most people associate with the TIC aspect.

    So who is registered and what restriction(s) are also on the register?

    The register is not the be all here but it is important to understand who can do what re the legal ownership. That can impact on what happens next re the realising the beneficial ownership.

    The beneficial ownership in property terms relates to its value as you can't (in reality) split it in terms of bricks and mortar. The split is in the value, which can often only be realised if it is sold or a party bought out. Hence the 'forced sale' option being mentioned and why the solicitor may be unsure as to how a court would view things as a court would consider the variety of evidence each side might present.

    Can you clarify what is registered for us please?

    Note - people will always look to the register to confirm whether the joint ownership is held as TIC. It is not the definitive evidence many suggest as you can have a trust deed such as this and not register a form A restriction for example.
    Last edited by Land Registry representative; 10-06-2017 at 10:55 AM.
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
    • xylophone
    • By xylophone 10th Jun 17, 11:04 AM
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    xylophone
    I am not sure that it does create a tenancy in common as such.


    The parties were and remained beneficial joint tenants but agreed that if the property were sold, the proceeds would be split 50/50.

    There does not seem to be any requirement for the property to be sold on the death of Mrs Penny, but if a sale is proposed, it cannot take place without the consent of her PRs (Executors).

    The inference is that on sale, half the proceeds would form part of Mrs Penny's estate?

    But the sale might not take place in the lifetime of Mr Bloggs?

    Indeed, given the acrimonious history, if Bloggs can avoid sale ( and particularly if he is living in the property), he'll fight to sit there until hell freezes over?
    • ceaserandnewton
    • By ceaserandnewton 10th Jun 17, 8:23 PM
    • 11 Posts
    • 1 Thanks
    ceaserandnewton
    Thank you everyone for all the replies, they have really helped me to look at this from different aspects. It does appear though this isn't a clearly defined drafted deed or is it?

    I have uploaded the Land Registry Title which i obtained yesterday, all the bits in red are those i edited.

    Code:
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    • getmore4less
    • By getmore4less 10th Jun 17, 8:53 PM
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    getmore4less
    Does not help

    All that says is the property cannot be disposed of without the consent of another.
    (land reg rep may be able to say if that restriction passes to personal reps).

    it does not help deciding the beneficial interests in the property.
    • G_M
    • By G_M 10th Jun 17, 9:14 PM
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    G_M
    As the property is registered in Mr Bloggs name I don't see how you, or anyone, could force a sale.

    If he did sell, or if the property was sold on his death, then it may be that Mrs Penny's estate could expect 50%, but I wonder if this is still the case given that Mrs Penny has pre-deceased him?
  • Land Registry representative
    So you have a straightforward voluntary restriction in favour of Mrs Penny to protect her interest, whatever that may be. I say whatever that may be simply because the deed alone may not encapsulate that interest or its conditions.

    The restriction still applies despite her death in that the interest it protects is assumed to still exist and form part of her estate. So the named executir(s) in the probate woukd have to consent or agree to it's withdrawal/cancellation.

    It is a fine example of how someone's interest, most likely beneficial here, can be protected in a different way to say a form A restriction might sever the joint tenancy.

    In one way this restriction is better than the form A as it requires someone's consent

    If only a form A had been registered Mr Bloggs could appoint someone to act with him on any sale, if he chose to sell of course. Together they would take receipt of the sale monies and those monies then become the subject of the discussion as to who has what share etc

    I should stress that this is very much posted from a registration perspective and awareness of the interests that usually give rise to such restrictions. We do not deal directly with wills, inheritance, trusts and so on. It's vital that you focus on Mrs Penny's interest and what it is and how her estate realises it's worth.
    Last edited by Land Registry representative; 11-06-2017 at 11:01 AM.
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
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