Dispute between property owners - Advice please

coffin137

Hello

I am eagerly seeking some advice and would welcome any help possible please. This is somewhat complicated matter but I shall try to explain as best possible.

My uncle and father are 'beneficial joint tenants' of a property. There is no mortgage/debt on the property. The deed for the property is currently held by the Solicitors Regulation Authority (it was previously held by a local solicitor, but the firm unexpectedly shut down and the SRA claimed all paper work).

My father has issued me a General Power of Attorney to manage his share of the property, on his behalf. He has made it clear I am welcome to do whatever I wish with his share, including 'gifting' it to myself. My uncle is aware of my fathers position over the property

The property is divided into 3 sections; 2 commercial units downstairs and a residential listed flat upstairs.

My uncle is operating his business from one of the commercial units downstairs. Until a year ago, the other commercial unit downstairs was empty.

Last July, my uncle leased that section to another party. He went about this all at his own discretion, i.e. finding a tenant and creating the lease. He has since been receiving the rental income from that 2nd commercial unit.

The flat upstairs is vacant.

Originally, my uncle and I agreed that after 12 months I would take over the management of the 2nd commercial unit (I would either operate my own business there or lease it as per). 12 months have now passed and after meeting him several times, he clearly has no intention of adhering to our original agreement. He is obviously enjoying the benefits of operating his business with no rent to pay, whilst collecting rental income from the other commercial unit.

He has advised me that until my name is on the deed, he is not interested in discussing the property with me directly.

So in essence we have a stalemate and I feel powerless. I (effectively) own 50% of the property yet am receiving no financial benefit from it.

To further complicate matters, if my father were to die my uncle would naturally inherit the entire ownership of the property, due to the 'joint tenancy' definition (clearly the opposite also applies).

I have seeked legal advice from a solicitor and 4 months ago a letter was issued by my solicitor, to my uncle, for him to authorise release of the deeds. Whilst I can reclaim the deed from the SRA on behalf of my father (via the power of attorney), I cannot reclaim it without my uncles written consent, as he is listed on the deed. Had the deeds been reclaimed, my father would have 'gifted' me his share of the property and a new deed would've been formed. Sadly my uncle has chosen not to respond to my solicitor.

My solicitor once suggested severing our 'joint tenancy' but I have yet to discuss with them the implications of this and how it would effect my overall situation. I am aware however reverting to 'tenants in common' immediately isolates my fathers share in the property.

My father is willing to cooperate with me to resolve the issues over the property.

My ultimate objective is to sell my (eventual) share of the property, be that to my uncle or another party. I have hinted this to my uncle but he is purposely giving very little away as to his intentions. My overruling feeling is he would be happy for the current situation to prolong indefinitely

I am sorry for waffling on but hope to have provided as much information possible. Any guidance would be most appreciated. This issue is causing me much grief and stress

Kind regards
Bobby

Mojisola

Severing the joint tenancy should be done immediately.

Does your father have a will? If not, that should be done asap.

If you have power of attorney for your father, your uncle has to deal with you as if you were your father - you are acting for him. Saying you need to be on the deeds is a smokescreen.

I think that, as attorney, you may have problems giving yourself your father's property.

Also, he needs to be aware of possible problems in the future if he gives the property away. Read up on deprivation of capital.

G_M

* You cannot give yourself the ownership. As POA you have a legal duty to look after the property in your father's best interests. He is the owner, and beneficiary of any income/sale.

Tp transfer it into your own name, using your POA, would open you up to all sorts of accusations of mis-using your power.

And given there seems to be a dispute with the other joint owner, he could easily exploit this!

* If you want the property put in your name, your father should give it to you (assuming he is of sound mind).

Options:

* advertise quietly and get a tenant in the upstairs flat (read this post). Become their landlord and give the rent to your father (he/you will have to declare for tax etc). If/when uncle complains, you can start negotiation on the entire building and (hopefully) reach an equitable/amical solution.

* Start legal action to claim 50% of the rental income your uncle is getting, plus for 50% of the rental value of the unit he is using. (Again, this would be your father's income.)

* Sell. You would either need your uncles agreement to sell/split the value, or you would need a court to order him to sell. Not sure how viable this would be (it would cost in legal fees!) - I suspect difficult. It happens in divorce cases where one party wants to sell and the other refuses, but here....?

* approach the leaseholder of the unit and require him to pay you 50% of the rent. Your dad is his joint-landlord

*

The deed for the property is currently held by the Solicitors Regulation Authority

Not sure of the relevance of this. I take it the property has been owned by your dad/uncle for many (at least 25+)years and is unregistered?

Sudden thought: is the lease your uncle created 7 or more years, or is it a short lease/tenancy? If long lease, it should have been registered at the land registry, in which case I suspect the freehold property as a whole should also have been registered.

In which case, the 'Deeds' held by the SRA are irrelevant.

coffin137

Thank you for your replies

"Severing the joint tenancy should be done immediately"
- I've been advised to do this many times now and will do so today. I was holding off as I didn't know if being a 'joint' or 'common' tenant effected my rights when it comes to my uncle leasing the 2nd commercial unit

"Does your father have a will?"
- He does and he has left his share to myself, so we're on the same page

"Saying you need to be on the deeds is a smokescreen."
Exactly, my uncle has not taken the general power of attorney issued to me seriously

"I think that, as attorney, you may have problems giving yourself your father's property."
- My solicitor has advised me that when it comes to my father giving me his share as a 'gift', the authorities will require written confirmation that the power of attorney is still valid. My father/his solicitor are ready to provide this

"Read up on deprivation of capital"
- Will do

"You cannot give yourself the ownership. If you want the property put in your name, your father should give it to you (assuming he is of sound mind)"
- He is of sound mind. The reason he's issued the POA is because he's rarely in the UK. He is ready and willing to do whatever is required for me to take ownership of his share in the property. There is no dispute at all on that front

"Advertise quietly and get a tenant in the upstairs flat"
- Sadly that's not possible. Whilst the upstairs is listed as a residential premises, it is not in a position to be rented out. It requires considerable work doing which would be impossible to do 'on the quiet'. Furthermore I am reluctant to spend money on the building whilst in limbo

"Start legal action to claim 50% of the rental income / Sell. You would either need your uncles agreement to sell/split the value"
- I have this morning been advised by a property litigation specialist that I must (first sever the joint tenancy and revert to tenants in common) and then make my uncle aware my father wishes to sell. Apparently it is best I first offer my uncle the opportunity to buy me out. If he does not wish to, in the same proposal I should offer we split the property (which can be done, upstairs/downstairs). I/my father would then solely own the upstairs flat, which we'd sell as soon as practical

" I take it the property has been owned by your dad/uncle for many years and is unregistered?"
- Absolutely right. It's been in the family name for 30 years.

(You're a switched on person!...)

"Is the lease your uncle created 7 or more years, or is it a short lease/tenancy? If long lease, it should have been registered at the land registry, in which case I suspect the freehold property as a whole should also have been registered. In which case, the 'Deeds' held by the SRA are irrelevant."

- I spoke directly with the tenant last week. He confirmed it was a 1 year lease and now 'rolling'. I have paid the nominal fee to the land registry website and the only register on there is a 'caution property register' which my uncle inserted last year. From what I've been told, this means that if the property is to be registered with the land registry, he is notified first

So in effect, the property still isn't registered, which presumably he couldn't do, as he didn't have the deeds. It was I who informed him the whereabouts of the deeds. Even if he found them himself, he'd not been able to claim them without my father's consent

I very much so appreciate your advice. As you can see, this is a complicated matter

Any further help or advice would be most appreciated

Thank you
Bobby

observations_from_a_hill

Bobby, you need to go back to your solicitor (and start spending some money).

Does the "general power of attorney" specifically delegate to you all your dad's powers as trustee of this property?

Land Registry are particularly pertinent about delegation of trustee powers. Your dad and your uncle are both trustees of the property, whether or not the joint tenancy is severed. If your power of attorney does not allow you to act as trustee, you can't sell to uncle or join with him in a sale to a third party.

So check out fast exactly what your POA covers.

princeofpounds

My father has issued me a General Power of Attorney to manage his share of the property, on his behalf. He has made it clear I am welcome to do whatever I wish with his share, including 'gifting' it to myself.

As has already been pointed out, you need to act ONLY in your father's best interests. Forget signing anything into your name for now. You need to deal with things sequentially or you risk conflating issues.

G_M gives you a rough menu of options. Personally I would pursue the sale option. People are not normally allowed to 'trap' the capital of other co-owners unless there is some sort of agreement to do so. And I think it might actually be easier and cleaner than trying to co-exist with an unco-operative co-owner (which could mean multiple lawsuits or even criminal problems, for example if one of you illegally evicts the residential tenant appointed by another).

If your solicitor hasn't already given you advice along these lines, you need to get a specialist who can or start paying for the advice. This will not naturally resolve itself.

coffin137

Thank you again for your replies

"Bobby, you need to go back to your solicitor (and start spending some money)"

- I have gone back to them since. And believe me it's cost money already...for the past 12 months I've been trying to locate the deeds and also a will (which was originally related, but proved not to be). I've spent £2,500 to date

"Does the "general power of attorney" specifically delegate to you all your dad's powers as trustee of this property?"

- No it doesn't, it's a carte blanche general power of attorney. After showing it to my solicitor, they confirmed it is one of the most powerful power of attorneys documents possible, as it's unrestricted. Such POAs are only issued under complete confidence

"Land Registry are particularly pertinent about delegation of trustee powers.."

- My solicitor informed me right at the start; when it comes to removing my father from the title deed and putting my name there instead by him 'gifting' me his share, the land registry will require written confirmation that the POA is still valid. They require this from both my father and his solicitor. As and when that's needed, it's not a problem at all. As I say, my father is completely in agreement with whatever I decide

"Personally I would pursue the sale option.....you need to get a specialist who can or start paying for the advice"

- Yes. My primary objective is to sell my / my fathers share, however possible. Be that to the existing co owner or Joe Bloggs. I want my equity out of the asset.

I am seeking further legal advice at the pricey sum of £220 +VAT per hour

I don't know how this will end. My feeling is my uncle will be difficult for the sake of it. That's his choice, it will just cost him time, money and stress

"People are not normally allowed to 'trap' the capital of other co-owners unless there is some sort of agreement to do so. "

- This is what I said to my solicitor. Let's assume that my father was in financial distress and required the equity from his share of the asset to resolve his financial problems. Surely, SURELY! as the legal owner, of his share, he has the right to cash in. I cannot see why a court of law would stop someone from claiming what is theirs

On top of that, I am prepared to be completely reasonable. My uncle can either buy me out directly, or we can divide the property, allowing me to sell my portion thus reclaim my equity. I am not preventing him from running his business, nor am I forcing him to sell his share

In my eyes it's as 'simple' as that but these things never are..

Thanks again