Deed - Restriction Clarification

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

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.

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

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.

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imageshack.com/a/img924/6006/ZyNm7R.jpg

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

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

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.