Death of tenant in common?

duncan303

I understand what you are saying,

So the question is; does the Executor of the Bs' Will have any additional authority that the beneficiary does not?
Essentially a sort of Power of Attorney. and if so does an Executor have any more authority than the living person

so lets go back one stage further.... before B dies..

by what mechanism and authority does B have to force A to sell the whole property to another party, if B has debts with HMRC and A is totally solvent?


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duncan303

getmore4less wrote: »

Can the estate can just right off the mortgage debt because it is jointly held with someone else?

Because A and B were almost certainly "jointly and severally liable" for the mortgage. All the remainder of the mortgage responsibility secured on the property passes to surviving legal owner A upon Bs' Death.

it's not written off



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HelpWhereIcan

My understanding of the subject matter is really quite superficial (enough to explain the two briefly and say "talk to your solicitor about which is best for you") but ...

I have seen a few cases in the last couple of years where steps were taken to force the sale of a property against the will of one owner through the courts.

One was the obvious marital (joint tenants) where my client wanted his share of the equity to enable him to buy a new house (he also needed the transfer of equity to be rid of the financial commitment). His ex agreed a figure and then strung him along with getting it to him.

The second was brother and sister on an inherited property with no mortgage owned as tenants in common. The brother wanted to sell and use the cash, the sister wanted to live in the house. They could not agree a price and she had issues getting a mortgage.

In both cases, the person looking to extricate themselves took the matter through the courts and an order to sell the property was made in both cases.

However, in both cases the person looking to retain ownership was given 3 months to raise the funds before the property had to be auctioned.

In the case of the marital split the ex could not get the mortgage and was given another 3 months before finally getting a mortgage with her new beau.

The sister got the money just in time but was advised by her solicitor that the court would not be minded to give her more time if they thought she would be unable to raise the funds in the short term (it was v touch and go with only one lender in play).

I have seen a number of splits where the solicitors acting for one or the other have threatened to force the sale through the court, but these two actually went there and are the most recent.

I would therefore say that, based on my experience, it is possible to force the sale (I do not see why an estate or beneficiary would have fewer rights) but it is not quick, easy or cheap.

Miss_Moppet

The poster 14 seems to have summed it up very nicely, but perhaps I could add my thoughts in agreement.

It would help to establish what the position would be if there wasn’t a mortgage and then consider it with the existence of a mortgage.

As regards no mortgage, a journalist for The Guardian who wrote in answer to a similar question asking if a tenant in common can force a sale said

If you and your co-owners are tenants in common - and so each own a distinct share of the property - then yes you can force a sale. However, to do so you would need to apply to a court for an "order for sale".

http://www.guardian.co.uk/money/2008/apr/30/property.mortgages

Presumably on the death of a tenant in common the person who inherits that share steps into the deceased shoes and becomes a tenant in common, so the above reply would seem to apply to this case just as well.

Personally, I don’t think this is all that simple. Before a court will order a sale, it must be satisfied that it’s just and equitable for such an order to be made, it mustn’t be unfair to either party.

If a property is jointly owned for example by business partners and the incoming tenant in common wishes the property sold, there probably wouldn’t be much of a problem for the court. The other tenant/tenants in common as business partners would probably have easy access to funds or finance and could buy the newcomer’s share of the property at market value as an alternative to selling the property, failing which the court can make an order for sale.

But if the existing tenant in common was an elderly person with nowhere else to live or a mother bringing up small children, again with nowhere else to live, it may be that a court would think it’s unfair to make an immediate order for sale. It might even take several years before a court thinks otherwise, although the examples given in post 14 show the court take a tougher line than one might have expected.

In the meantime, the person inheriting the deceased share needs to see a solicitor as soon as possible in order to be officially appointed as new co-trustee of the beneficial ownership of the property at the Land Registry.

Looking at the picture with a mortgage, surely the incoming tenant in common’s beneficial interest is subject to the mortgagee’s interest in the property, as was the case with the previous tenant in common. The difference now is that the newcomer isn’t a party to the mortgage as such and isn’t contractually obliged to contribute to the mortgage payments.

The newcomer might be tempted to stand back and let the other tenant in common fall into arrears and allow the mortgagee to foreclose on the property but while this would lead to an eventual sale there probably wouldn’t be anything left after all costs have been deducted.

getmore4less

duncan303 wrote: »

Because A and B were almost certainly "jointly and severally liable" for the mortgage. All the remainder of the mortgage responsibility secured on the property passes to surviving legal owner A upon Bs' Death.

it's not written off

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So they can ignore the debt and not have to pay anything.

Presumably it would still be counted when calcualting the net value of the estate for other purposes like tax or sharing out the assets.

Dan_1976

My understanding is that yes you can and this is why the solicitor will give advice about wills and life insurance.

Then tennent in common a may be able to pay off b's liability or buy the share from the estate.

I would really get advice from a good solicitor.

duncan303

Two good posts here HelpWhereIcan always good to hear summary of caselaw, Miss Moppet also very good post.

however all these do appear to concern original signiatories to contract or persons of equal standing... Therefore equal duty of sale

Guardian article.. a bit lite;)

Off to read Mayo 1943 and Barclay v Barclay 1970


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pingu2209

duncan303 wrote: »

where property is owned in equal shares as "tenants in common" (let say by two people but could be more) A and B.

B dies and leaves estate to C

A remains a legal owner and C becomes a Beneficial owner(after probate).

A does not need permission of C to sell

C cannot force A to sell

essentially a trust
pretty sure Ive got this right... see what others have to say


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That is exactly right. My mother and her partner own a bungalow. She is a lot older than him and in bad health. He could reasonably out live her by 20 years. She has left her half of the bungalow to me and my siblings. We know that she and her partner are tenants in common and when she dies her partner can live there till he dies if he wants, we can't kick him out or force him to sell.

However, if he sells the house or remortgages for income etc. any calculations he makes are for only half the equity. If he needs to go in a home 10 years after my mother dies, for example, only half the bungalow's value can be calculated for his home fees.

CLAPTON

pingu2209 wrote: »

That is exactly right. My mother and her partner own a bungalow. She is a lot older than him and in bad health. He could reasonably out live her by 20 years. She has left her half of the bungalow to me and my siblings. We know that she and her partner are tenants in common and when she dies her partner can live there till he dies if he wants, we can't kick him out or force him to sell.

However, if he sells the house or remortgages for income etc. any calculations he makes are for only half the equity. If he needs to go in a home 10 years after my mother dies, for example, only half the bungalow's value can be calculated for his home fees.

why can't you 'kick' him out...is that a specific term in the legacy?

duncan303

pingu2209 wrote: »

That is exactly right. My mother and her partner own a bungalow. She is a lot older than him and in bad health. He could reasonably out live her by 20 years. She has left her half of the bungalow to me and my siblings. We know that she and her partner are tenants in common and when she dies her partner can live there till he dies if he wants, we can't kick him out or force him to sell.

However, if he sells the house or remortgages for income etc. any calculations he makes are for only half the equity. If he needs to go in a home 10 years after my mother dies, for example, only half the bungalow's value can be calculated for his home fees.

Stott v Radcliffe 1982 Provision of accomodation for co-owners for their lifetimes. Maybe A should just move into the property themselves:D

This is Buy to Let... Nor is it matrimonial just business. the occupiers should probably remain unaffected.
the bankruptcy rule could apply possibly , what about any death insurance policy?

It's not clear in the OP why a forced sale could be considered by a court to start with? Can the beneficiary of a Will claim inequitable denial of a windfall?


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