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Property not for sale

edited 26 March 2019 at 5:39PM in Deaths, Funerals & Probate
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  • JJWSJS8700JJWSJS8700 Forumite
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    Keep pedalling ~

    Thank you very much for replying.

    The DoT states property shall not be sold without my consent and that the proceeds must go to me.

    Some Solicitors say it should be noted on Land Registry, some day it shouldn’t.

    Brother is the Executor.

    This is the good part, he has SOLD the property, so proceeds should be sitting in Mothers’ Estate, But I can see it’s spent.

    My Mother was in a care home, complete with FREE care and the property was actually sold, 6mths before she died....so someone’s been lying to Social Services...
  • Keep_pedallingKeep_pedalling Forumite
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    Afraid that that sounds a total mess especially with the the added complication of care cost been fraudulently avoided.

    Shame the house is no longer in his or the estates ownership, you could block any sale if it was.
  • edited 9 June 2019 at 11:37AM
    Manxman_in_exileManxman_in_exile Forumite
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    edited 9 June 2019 at 11:37AM
    JJWSJS8700 wrote: »
    Thank you for replying.

    Are you a Solicitor, do you understand what a Solicitor advises someone to do when they are investing
    , do you understand what a Declaration of Trust entails?

    Please understand what a ‘Declaration of Trust is, before harping on about who is and is not the owner.


    Part of the problem is that the solicitor was not advising you, they were advising your mother (see #44, #45, #52) so you can't complain about them. (I'm not sure if her estate could make a complaint, but I assume your brother is unlikely to do that).


    As others have said, you could perhaps sue the solicitor for negligence, but that would be likely to be enormously costly and possibly take years. FWIW, I think your mother's solicitor should have made totally clear to you at the time that your mother was his client and not you, because of possible conflicts of interest. (And yes, I can believe that local solicitors may be "reluctant" to sue their colleagues).


    Because no charge was put against the property like any other lender would do (as I'm sure you would have been told if you'd taken independent advice) it's been able to be sold - whether your mother understood what she was doing is another question. Your only(?) recourse is against the proceeds of sale which looks like it would mean suing your brother - if he's still got the money.


    Is it possible to post the wording of the DoT with names etc omitted? Have you got any paperwork from the solicitor indicating he was acting for both of you? (I know, 20 years ago...)


    And, sorry if I've missed it, what's your status under the will, if any?


    (PS - I see you've got your own solicitor but the other guy isn't replying to his letters. Don't know if it's still the case or not, but at one time that would have been a real "no no" itself, and grounds for your solicitor to make a professional complaint).


    EDIT: when your mum's solicitors got "her" instructions to sell, the register would have been checked and would have shown her as sole owner with no charges against it, therefore OK to sell. That's one of the purposes of the register - to prevent sales of property with money loaned against it. I'm not sure it's reasonable to expect them to check back 20 years for a DoT that they themselves may have drawn up, but had never been put on the register.
  • Keep_pedallingKeep_pedalling Forumite
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    Part of the problem is that the solicitor was not advising you, they were advising your mother (see #44, #45, #52) so you can't complain about them. (I'm not sure if her estate could make a complaint, but I assume your brother is unlikely to do that).


    As others have said, you could perhaps sue the solicitor for negligence, but that would be likely to be enormously costly and possibly take years. FWIW, I think your mother's solicitor should have made totally clear to you at the time that your mother was his client and not you, because of possible conflicts of interest. (And yes, I can believe that local solicitors may be "reluctant" to sue their colleagues).


    Because no charge was put against the property like any other lender would do (as I'm sure you would have been told if you'd taken independent advice) it's been able to be sold - whether your mother understood what she was doing is another question. Your only(?) recourse is against the proceeds of sale which looks like it would mean suing your brother - if he's still got the money.


    Is it possible to post the wording of the DoT with names etc omitted? Have you got any paperwork from the solicitor indicating he was acting for both of you? (I know, 20 years ago...)


    And, sorry if I've missed it, what's your status under the will, if any?


    (PS - I see you've got your own solicitor but the other guy isn't replying to his letters. Don't know if it's still the case or not, but at one time that would have been a real "no no" itself, and grounds for your solicitor to make a professional complaint).


    EDIT: when your mum's solicitors got "her" instructions to sell, the register would have been checked and would have shown her as sole owner with no charges against it, therefore OK to sell. That's one of the purposes of the register - to prevent sales of property with money loaned against it. I'm not sure it's reasonable to expect them to check back 20 years for a DoT that they themselves may have drawn up, but had never been put on the register.

    If the solicitor was the only one involved in drawing up the DoT then he / she was acting for both parties. Failing to take the DoT into account when acting solely for the OPs mother decades later would seem to somewhat negligent.
  • Manxman_in_exileManxman_in_exile Forumite
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    If the solicitor was the only one involved in drawing up the DoT then he / she was acting for both parties. Failing to take the DoT into account when acting solely for the OPs mother decades later would seem to somewhat negligent.


    They could have been working for both parties, but as mum was the owner, I think the OP should have been advised to get independent legal advice because of a potential conflict of interest. The DoT is protecting the OP's interest so it's actually more important for her to get reliable independent advice.


    Mum's solicitor may have been wrong to sell the property because of the DoT, but as the OP never registered it (so it wouldn't be apparent on a search) I'm not sure it's "wrong" enough to amount to negligence. I don't know what the chances of successfully suing them would be.
  • JJWSJS8700JJWSJS8700 Forumite
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    Manxman

    Thank you for replying.

    You don’t think it’s reasonable for to know about a DoT made by him 17yrs ago???

    Why is that unreasonable, forget about me, that was my Mothers’ instructions, after HE told us how to go about the deal, we made, between Mother and me and himself.

    I have the 3 letters which are sort of minutes of each meeting, explaining ‘your deeds will be kept in Solicitors safe, for life, at no cost.’

    No other Solicitor involved, this one did not advise me to seek independent legal advice.
  • gettingtheresometimegettingtheresometime Forumite
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    I always thought a DoT was designed what to do in the event of a dispute e.g. in the case of where people contributed different %ages of deposits etc.

    If I'd wanted to protect my investment then I'd have put a charge on the property.
    Lloyds OD / Natwest OD / PO CC / Wescott / Argos Card / JD Williams cleared :) thanks to the 1 debt v 100 day challenge
  • edited 9 June 2019 at 11:21PM
    Manxman_in_exileManxman_in_exile Forumite
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    edited 9 June 2019 at 11:21PM
    JJWSJS8700 wrote: »
    Manxman

    Thank you for replying.

    You don’t think it’s reasonable for to know about a DoT made by him 17yrs ago???

    Why is that unreasonable, forget about me, that was my Mothers’ instructions, after HE told us how to go about the deal, we made, between Mother and me and himself.

    I have the 3 letters which are sort of minutes of each meeting, explaining ‘your deeds will be kept in Solicitors safe, for life, at no cost.’

    No other Solicitor involved, this one did not advise me to seek independent legal advice.


    I think what I'm suggesting is:


    1. the DoT should have been recorded on the register. If it had been, your mother's property probably could not have been sold without you knowing about it. You say that it wasn't necessary to do so, and you may be right, but that doesn't mean it shouldn't have been. One of the purposes of the register is to try to prevent this sort of situation arising. Did anyone advise you it wasn't necessary, or is this from your own research?


    2. Assuming the solicitor was acting only for your mother (and not both of you) I think he ought to have advised you to seek independent legal advice to protect your position. I don't know how much money you provided, but I assume it was a fairly substantial amount.


    3. When your mother gave instructions to sell the property, I would have expected the solicitor to check your mother's file to re-acquaint themselves with title. But I'm a very pedantic, belt and braces, dotting the "I"s and crossing the "t"s sort of person.


    4. If there were no charges recorded on the register and your mother was the sole owner, I can see the sale going through as, on the face of it, there was nothing to prevent it.


    5. Taking 3 and 4 together, I'm not certain that your mother's solicitor's overlooking of the DoT would be ruled as negligent by a court. It might be, it might not be. I don't know if a solicitor "forgetting" something from 17 years ago is negligence. (I think it should be, but what I think doesn't count).


    6. You've engaged a solicitor and the best anyone here can say is "Follow their advice - they're professionally qualified and you're paying for it".


    7. Having said 2 and 6, have you any evidence from 17 years ago that you (not just your mother) were a client of your mother's solicitor? If you were (and it's a big "if") it may be easier to complain rather than attempt to sue them.


    8. Really you ought to be following the money and pursuing your executor brother, but is there any money left?


    I'm not a solicitor but do have a law degree. Unfortunately I graduated 40 years ago and have forgotten all but the basics. Don't follow any of my advice except to be guided by your own solicitor.


    [EDIT: my wife is a solicitor and between us we have three law degrees - didn't stop us cocking up our own DIY wills which we had to pay to get done properly].


    Good luck.


    (PS - I'm not being critical of you personally regarding not registering the DoT. If you don't know how the law works there's obviously no reason why you should be expected to know any different - that's one reason why you should have been told to get your own legal advice at the time).
  • edited 9 June 2019 at 11:25PM
    Manxman_in_exileManxman_in_exile Forumite
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    edited 9 June 2019 at 11:25PM
    I always thought a DoT was designed what to do in the event of a dispute e.g. in the case of where people contributed different %ages of deposits etc.

    If I'd wanted to protect my investment then I'd have put a charge on the property
    .


    Quite. The OP seems to have been under the impression (justified or not) that the solicitor was acting for both of them and was looking after her, as well as her mother's, interests. Even if the solicitor had not advised the OP to seek independent advice, they could at least have pointed out that it would be prudent to register it. But perhaps even that is a conflict as it could be seen as being against the mother's interests?


    EDIT: I suppose the dispute would be that between the owner (who wants to sell) and the OP who funded the original purchase and perhaps doesn't want to sell.
  • JJWSJS8700JJWSJS8700 Forumite
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    Manxman:

    Thank you very much for your reply.

    Guess I’ll just have to let him get away with it then, if our Solicitors simply destroy our Wills and Trusts, there’s no point in making them.

    Thank you
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