Advice needed please

harrypp

Hi everyone, hope you have been well.
My mother unfortunately passed away in March 2020. She owned a property with my father as tenants in common. 
She was diagnosed with lung cancer in 2017 and went to a solicitor to change the tenancy from joint tenancy to tenants in common as she wanted to leave her 50% share of the house to my brother and I. This was changed in 2018 as per her wish.  My father doesn't really see eye to eye with my brother and I, and his relationship with my mother was very bad too. 

So my question is the following: 
My mum had a will which specifically names my brother and I as the beneficiaries of her estate and she has clearly written in her will that she leaves her share of the house to us. We applied for probate and got that a few weeks ago. 

How do we go about updating the land registry records? Can my father prevent us from adding our names to my mum's share of the property?
Also what should we do as we want to sell the property but my father doesn't. It is a 3 bedroom house and we are saying to my father that he should downsize as there is a small mortgage left on the property which no one can really afford to pay. We have said he can use the proceeds of the sale to buy a smaller property outright (we have even said we will give up some of our share so he can buy the right property).

Any advice would be welcome.

Thanks

badmemory

Does the will not give him the right to live there providing he maintains it?  That would be the norm.

Dox

harrypp said:

Hi everyone, hope you have been well.
My mother unfortunately passed away in March 2020. She owned a property with my father as tenants in common. 
She was diagnosed with lung cancer in 2017 and went to a solicitor to change the tenancy from joint tenancy to tenants in common as she wanted to leave her 50% share of the house to my brother and I. This was changed in 2018 as per her wish.  My father doesn't really see eye to eye with my brother and I, and his relationship with my mother was very bad too. 

So my question is the following: 
My mum had a will which specifically names my brother and I as the beneficiaries of her estate and she has clearly written in her will that she leaves her share of the house to us. We applied for probate and got that a few weeks ago. 

How do we go about updating the land registry records? Can my father prevent us from adding our names to my mum's share of the property?
Also what should we do as we want to sell the property but my father doesn't. It is a 3 bedroom house and we are saying to my father that he should downsize as there is a small mortgage left on the property which no one can really afford to pay. We have said he can use the proceeds of the sale to buy a smaller property outright (we have even said we will give up some of our share so he can buy the right property).

Any advice would be welcome.

Thanks

If that's his home and he doesn't want to sell, there won't be much you can do to force a sale. A court would be reluctant to oust him from his home, especially as he is newly widowed and presumably not in the first flush of youth.  The glimmer of hope is that if nobody can afford to pay the mortgage, the mortgage company may solve the problem for you if you be patient for a while.

xylophone

https://www.land-registry-documents.co.uk/information/joint-ownership-tennants/

https://www.barkerevanslaw.co.uk/2015/05/changing-to-tenants-in-common-hidden-dangers/

It appears that your mother's will did not create an interest in possession trust for your father? 
This would have allowed him to continue to live in the property/ downsize etc.

https://wards.uk.com/online-services/legal-guides/life-interests-rights-occupation/#
As things stand, your father now becomes the sole legal owner but with a beneficial interest in half the equity. See links above.

I think it would be unlikely that you would get an order to force a sale.
Is there no insurance policy in existence to pay off the mortgage on the death of a co owner?
The mortgage is a complication.
See also https://www.co-oplegalservices.co.uk/media-centre/articles-sept-dec-2018/does-a-mortgaged-house-need-to-be-sold-after-the-owner-dies/

harrypp

Thanks for you responses.

The mortgage is now in the sole name of my father as when we enquired about any insurance policies we came to find that they had been cancelled a few years back. 

My mum didn’t create an interest in possession trust for my father. 

The relationship between my parents was very strained and my mum was the sole contributor towards the mortgage. 

The main reason for us wanting to sell the property is due to my father wanting to settle down, and possibly marry again. We respect that and understand he needs to live his life, but it hurts us to know he will be starting a new family in a home that my mum put her blood, sweat and tears into. It makes sense for all parties to sell the house and for him to buy a 2 bed house without a mortgage.

so am I right in thinking the following:

a) there isn’t much point in us putting our names on the land registry

b)we are unlikely to get an order of sale as my dad could say he it’s his home and he doesn’t want to move? 

He is 61 years old and were told by someone that he is of working age so it’s not unreasonable to expect him to work for the next 5-6 years. 

AnotherJoe

harrypp said:

Thanks for you responses.

The mortgage is now in the sole name of my father as when we enquired about any insurance policies we came to find that they had been cancelled a few years back. 

My mum didn’t create an interest in possession trust for my father. 

The relationship between my parents was very strained and my mum was the sole contributor towards the mortgage. 

The main reason for us wanting to sell the property is due to my father wanting to settle down, and possibly marry again. We respect that and understand he needs to live his life, but it hurts us to know he will be starting a new family in a home that my mum put her blood, sweat and tears into. It makes sense for all parties to sell the house and for him to buy a 2 bed house without a mortgage.

so am I right in thinking the following:

a) there isn’t much point in us putting our names on the land registry

b)we are unlikely to get an order of sale as my dad could say he it’s his home and he doesn’t want to move? 

He is 61 years old and were told by someone that he is of working age so it’s not unreasonable to expect him to work for the next 5-6 years. 

a) Absolutely NOT ! Get your names on the register, your mum left half of that house to you.

Otherwise your dad  could sell and do whatever he wants with the money.

b) Dunno but at least you'd prevent a big mess in future when  he leaves "his" house to someone else or sells "his" house and takes the money for himself.

With your names on the register he'll need your agreement to sell which puts you and your brother in the driving seat.

xylophone

The property is mortgaged which is a complication.

It would appear that the mortgage is now in the sole name of the OP's father.

It seems to me that any recording of the brothers as tenants in common with their father would require a reference to the mortgagee.

And as the father is the sole legal owner I believe that it would require his agreement to record the names of his sons as his joint proprietors.

All that said, it may be possible for the sons to place a restriction on the register ( other than the Form A restriction) to protect their position.

See  https://www.barkerevanslaw.co.uk/2015/05/changing-to-tenants-in-common-hidden-dangers/

"There are other types of restriction that can be entered on the property register rather than entering a Form A restriction. Again, this needs careful consideration and it’s best to take legal advice before choosing an alternative form of restriction."

AnotherJoe

IANAL but if the wife left her half to her sons, why is the father the  sole legal owner?

harrypp

AnotherJoe said:

IANAL but if the wife left her half to her sons, why is the father the  sole legal owner?

This is what i am confused about too. I was under the impression that legally the property was divided into 2 equal parts between my dad and us (brother and I). 

We believed that the mortgage being in the sole name of my father was simply implying that only he owed the debt on the mortgage. The house value is around 550k and the mortgage amount owed is roughly 40k. 

I am also a little confused at how we add our names to the land registry. The information on those links has my head in a spin. 

As mentioned by anotherjoe, our biggest concern is that my father will remarry and if anything happens to my father, then that person will take control of the house. My mother had a tough life and worked all her life for us kids. Even if she left us just £10 we would fight tooth and nail for it. It’s what she wanted to do. 

My father is being difficult with us at the moment. 

xylophone

This is what i am confused about too. I was under the impression that legally the property was divided into 2 equal parts between my dad and us (brother and I). 

Have you read the first link in my first post above? It would clarify.

As mentioned in the first paragraph, only the equitable title can be held as tenants in common. The legal title must and will always be held as joint tenants. This means that on the death of tenants in common where only one survivor remains, although the survivor does not acquire the equity share left by the deceased, he does become the sole owner of the legal estate. This means he and he alone has the right to deal with the legal title (sell, mortgage, gift etc). He holds the property on trust for himself and the beneficiaries under the deceased’s will.

Keep_pedalling

As you have no chance of forcing a sale, you should consider a deed of variation setting up a life interest trust. This would avoid you being hit with a capital gains liability when the place is actually sold.

As above consult a solisitor.