Interesting, and complicated!

spr_3

Ok, thanks everyone.

A bit more detail regarding the background to the case;

When Stan retired, he struggled with the repayments on the mortgage, so Samantha took out a mortgage (thereby taking ownership?). Because the house was to be split equally between Samantha and Kerry in his will a clause was put in that Samantha couldn't sell without Kerry's permission.

Myself and Kerry are living at the house with Stan but Samantha lives elsewhere.

Samantha is in the process of buying a retirement flat for Stan for which she needs the £65,000 from us.

I have been told by my Mortgage advisor that we will need to get Samantha (and possibly Kerry) to write a letter confirming that the difference between the purchase price and the valuation is a 'gift absolute'(?).

I have received two letters now from our solicitor, the last one states that we don't need to pay the stamp duty but I am continuing to get conflicting answers from the mortgage company, mortgage advisor and the Solicitor.

(Oh yeah, and it doesn't help that the actual solicitor dealing with our case was on holdiay last week and hasn't arrived back yet because of flight delays, so we are currently in the hands of the paralegal!)

I'm off to chase people and will come back with a further update shortly.

Bossyboots

Taking out a mortgage on the property does not necessarily mean ownership was fully transferred to Samantha but as your solicitor appears to be going along with what you want to do, presumably ownership was transferred at that time. However, this would mean that Stan was not in a position to make a will leaving the property to the girls in any share at all, because it would no longer have been his property to leave. In what documentation did it state that the house could not be sold without Kerry's permission? This is usually done by way of a caution registered on the property. Was a separate deed drawn up?

The scenario you are painting does not tie together legally in the way you set it out. The issues I have raised probably won't affect you if the transaction goes through although they will if there is any doubt over the actual ownership position of the property.

spr_3

Thanks Bossyboots,

I'm not 100% sure about the details of ownership, but I do know that Samanthas name is on the deeds.

I understand that there was some form of restriction applied so that she could only sell the house with the permission of Ceri, although I have no idea where that is written.

Also, I may have made a fundamental error in my assumption of how a mortgage company makes an offer. The mortgage Company will only provide 90%, as I understand is a typical percentage, but is it 90% of the value or 90% of the sale price? I have asked my Mortgage Advisor but she hasn't given me a very clear answer.

Bossyboots

There are two possible scenarios for ownership. One is that the property is owned jointly by Stan and Samantha, in which case when Kerry buys Samantha's share she will be joint owner with Stan. The alternative is that Samantha owns the property solely in which case Stan's will wasn't worth the paper it was written on as the property would not have been his to leave as I mentioned before.

There is also the issue of whether they own it as joint tenants or tenants in common. As joint tenants, the whole property would pass to Samantha on Stan's death. As tenants in common he could only have left his half to Kerry and as his will stands, it sounds as though Samantha could have claimed half of that as well.

The issue of ownership is extremely important as you need to be sure exactly what you are buying and how Stan fits into the picture. Stan can only leave in his will property that he owns. As you are now undertaking this transaction, the issue of Stan's will may not matter but you really do need to find out who owns what now and who will own what when you complete your "purchase". Your solicitor must have obtained a copy of the land registry entry. You need to get a copy of that and find out what it says.