Joint Tenants vs Tenants in Common (long post warning)

getmore4less

Mojisola wrote: »

He doesn't have to - either owner can sever the joint tenancy and the other can't object.

[STRIKE]You can't sever the tenancy if one party does not have capacity because you can't serve them notice. [/STRIKE]

There is some case law on this and that is what I understood from the brief read.
(if remember will post link when back at PC)

edit:
The read was far too brief I got the context wrong.

noclaf

Mojisola wrote: »

He doesn't have to - either owner can sever the joint tenancy and the other can't object.

If I took POA/LPA over mum can I do it on her behalf.or.would.this be looked upon in.a bad light i.e: conflict of interest and might not.be in the interest of mum?

Re divorce.doc wording will take a look to pull out the key bits on property etc

getmore4less

Chadda v HMRC [2014]

pops up a lot with discussions relating to severing joint tenancy
often with references to other cases

here is a discussion on the STEP site relating to capacity.

http://trustsdiscussionforum.co.uk/t/severing-a-joint-tenancy-deliberate-deprivation/5914

noclaf

Ok I'm starting to get somewhere now though it's all a bit sketchy and documents appear to be incompleted or I am simply missing them.
As an FYI the documentation is over 20 years old..so this is going back a bit.
Via his solicitors my father requested the property be transferred into my mother's sole name but on the condition he retained a charge over the property representing 50per cent of the net equity on sale.I do not know if either parent ever signed this letter and do not have sight of a signed copy.
2 years after that my mum's solicitor sent a 'Notice of Severance' letter with following wording 'to sever joint tenancy in law and in equity...so that from.this date of notice you and I shall hold the property on trust for sale for ourselves as tenants in common(in equal shares) as if there had been an actual severance.
Important to note the above letter may not of been signed by either parent aswell and I have no idea if they ever did sign and send back to solicitor. My mum.was going through severe depression at the time so I have no idea what happened but it appears the intent to sever joint tenancy was there (requested by mum) and I have the letters to prove it however it.may not of been signed and processed.
Where does this leave things now? If it's ' seek legal advice' then will do so.

Tom99

What does a current copy of the legal title say regarding, ownership, Form A restriction and charges?

getmore4less

noclaf wrote: »

.......
Where does this leave things now? If it's ' seek legal advice' then will do so.

That is nearly always the case(need legal advice) if anyone is going to dispute your conclusions.

I think you have enough with the documents and the will to conclude the joint tenancy was severed.

You need up to date land registry info to add to your collection of paperwork.


Does this resolve the beneficial interests going forward or is there likely to be parties that want it as joint tenants?
You also have to consider HMRC as it changes the tax position(IHT and CGT).

noclaf

I will check the latest land registry entry to confirm if any changes were ever made to the tenancy...it could be that a change was made as a result of the divorce tenancy severance.and that I'm not aware
Re beneficial interests..it's an unknown...I hope issues won't crop up later but who knows. I am hopeful there wont be a challenge but if there is then will have to.deal.with it. I feel a bit more at ease now but I may still seek legal advice as planning to apply for poa/LPA for mum so may just throw this in there too to get the view of a legal person.

xylophone

You need to establish whether your mother has capacity to grant PoA.

https://www.gov.uk/power-of-attorney

Check the current LR entry before you do anything else.

noclaf

xylophone wrote: »

You need to establish whether your mother has capacity to grant PoA.

https://www.gov.uk/power-of-attorney

Check the current LR entry before you do anything else.

I've now obtained a copy of the title register from HM Land registry.

Under section B: Proprietorship Register it has a single entry entitled 'Proprietor' under sub heading 'Title Absolute' ,the original date of registry (year house was purchased) and both my parents are listed ...Dave and Sandra of 123 road...etc

So it appears to confirm there was no change to the register since they.purchased the house as there are no other entries which refer to right of disposal etc Both my parents went through serious health issues back during the divorce and I suspect neither were in a position to follow up and see through the tenancy change.
I am considering getting legal advice really to see all the possible scenarios that might play out...because to me this looks like the wishes.of their respective will's to pass their shares of the house to myself do not.marry up.to how the current tenancy setup affects right of disposal?

Land_Registry

noclaf wrote: »

I suspect neither were in a position to follow up and see through the tenancy change.

I am considering getting legal advice really to see all the possible scenarios that might play out...because to me this looks like the wishes.of their respective will's to pass their shares of the house to myself do not.marry up.to how the current tenancy setup affects right of disposal?

I'm not sure if you read my previous post. The land register is not definitive on how they hold their beneficial ownerships. It's only definitive re the legal ownership

You should therefore never be surprised by what the register does or does not refer to Or that it doesn't match wills, words, wishes or even your own understanding. In these scenarios it is just another piece of the jigsaw on beneficial ownerships.

i would strongly recommend that you do get legal advice to piece the jigsaw pieces together and assess best next steps.