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Joshua
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 26015
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My partner has a property in London valued at ca £750.000,

Resolved Question:

My partner has a property in London valued at ca £750.000, which is in his name. The property was sold to him by his mother 10 years ago when it was a derelict shell for a token amount and she paid for the property to be renovated at the time, the cost of which was ca 120k. The mother inherited the property. The verbal agreement between my partner and the mother at the time was that after 5 years the property was to be sold and the proceeds shared between my partner and 2 other brothers. She has since denied this was the case. Moreover, one of the brothers has lived in the house for the entire 10 years rent free. My partner lives with me. My partner wants to sell the property and wants the brother to leave. Does the brother have any rights to remain in the property? and Does the mother have any rights to any or all the proceeds?
Submitted: 3 years ago.
Category: Family Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask how much roughly the property was sold for please?

Joshua :

...that is by his mother to him 10 years ago.

Customer:

ca 40K

Joshua :

How much if any of the value of the property is your partners mother claiming?

Joshua :

From what you say the legal title is in your partners sole name?

Customer:

The title is solely in his name

Joshua :

Was any formal declaration of trust or other written correspondence entered into between your partner and his mother at the time of the sale to your partner or afterwards or in relation to the money his mother paid for renovation?

Joshua :

Was the renovation money paid to your partner and he then to the contractors or did she pay contractors direct to your knowledge?

Customer:

we don't think there was any declarations or written agreements

Customer:

the mother paid the contractors directly

Customer:

The mother is of the impression the whole property is hers

Joshua :

Thanks. Was your partners father alive at the time the property was transferred to your partner and if so was he involved with the property in question in any way?

Customer:

No the farther died around 49 years ago, my partner is 51.

Customer:

She inherited the property and a sum from an aunt

Joshua :

Thank you. Hopefully finally, do you know of any reason for his mothers apparent change of position? Would I be correct to presume that your partners brother has made no capital contribution to the property of any kind?

Customer:

She had a (unrealistic0 vision that the 3 brothers should all live in the property, save money and after 5 years split the proceeds and they would then be sorted for life, they were all ca 36-40 years old at the time. She has 5 other children who would split the proceeds from another property she owns. The problem was/is that the brother living there moved in with wife and child and started bullying the 2 single brothers to move (he is the favourite of the mother). They left of course and he has paid no rent to anyone, I think the mom even pais his council tax, bills etc

Customer:

The mom it seems was disappointed that her vision did not come true and I also think she spent most of her savings and decided she didn't want the deal that she herself had proposed

Joshua :

Thank you. This is a complex situation due to the amount of time that has gone by in part however the legal position is as follows. The starting point is that there is a presumption of advancement from parent to child when mother is the sole parent in law. This means that where mother is at the time of any property being transferred, a sole parent, there is a presumption in law that any property transferred at less than market value was a gift. This is due to be abolished shortly by the Equality Act though this will not be retrospective and in any event is not yet in force so the position in relation to this transaction will not alter.

Joshua :

Accordingly the starting point is that the property will have been gifted to your partner as would be the case with the refurbishment money. It would be for your partners mother to prove otherwise if she wished to rebut this presumption. She may do so if she could show correspondence for example or an express agreement to the contrary.

Joshua :

If she were to manage to show that the money for refurbishment was a loan not a gift then providing your partner has not acknowledge the debt in the last six years not made any repayments to her for the same then his mother could not claim the same any longer as it is stale under the Limitation Act after 6 years providing neither of the above apply.

Joshua :

In respect of the occupier. Providing his brother has neither paid rent nor made any capital contributions to the property he is an excluded occupier and therefore only entitled to reasonable notice - no less than 28 days though in practice given his length of occupation, 3 months is likely to be deemed to be the relevant "reasonable period" in this case. The notice must be in writing and clear though there is no prescribed form. After this has expired your partner can apply for possession of the property if he does not leave.

Customer:

They are not on speaking terms and there was never any mention of a loan

Customer:

My partner has taken legal advice and was told very differently from the above, namely that the mom would be entitled to a considerable sum upto 75% of the capital gains from the refurbishment? He has explained the situation exactly as I have. We do not trust that advice

Joshua :

It is not possible to retrospectively charge his brother rent though he could demand a market rent going forward if he has not promised rent free occupation in the past.


There is a caveat to the above. Notwithstanding his mothers potential to attempt to rebut the above presumption, based on what you say there was an understanding that the property would be sold after a certain period of years and divided between the brothers. If your partner accepts this (I presume there is no written evidence) then this would amount to something called a "resulting purpose trust" or "resulting trust". In other words your partners would hold the property on the terms agreed and accordingly if he accepts this then his brothers would have a claim to any proceeds of sale following sale of the property. This is of course on the basis that your partner accepts this as the position. If he did not then it would be for his brothers to try to make a claim against the property which may be difficult if they only have their own statements to rely upon.

Joshua :

Regarding the different advice he has received, this would be correct (leaving the figures quoted aside) but for the relationship between your partner and his mother. In English law the presumption of advancement is limited to certain categories. For example if we for the sake of an example hypothetically substituted you for his mother and assume you had done as his mother had. In these hypopthetical example, there would be no presumption of advancement and you would be presumed to have a sizeable interest in the property reflecting the money you invested and so on.

Customer:

Ok thank you, XXXXX XXXXX sense.

Joshua :

On the basis that his mother was a sole parent at the time of the transaction however there is a basis to claim presumption of advancement by your partner. On the basis that this presumption applies, this changes the position in your partners favour in that it is for his mother to prove that the transfer and money was not a gift but rather that she intended to retain an interest in the property. The above presumption does not preclude her from staking a claim but it means that it is she that is needing to prove her claim rather than your partner disprove that she has one. Given the lack of written evidence this therefore alters the position potentially significantly.

Customer:

Does his brother have right to stay in the property. We would like to sell it. My partner is very troubled about the situation and would like to move abroad.

Customer:

There is a step-father, per say, but the mother and he are not married as I understand it and my partner was never adopted

Joshua :

I do not however wish to paint this as black and white. There are complexities here in particular because of the amount of time that has gone by and presumptions or not there is the opportunity for different parties to stake their respective claims, albeit staking a claim is not the same as proving that claim. Given the value of the property, there is the potential for litigation on this matter. Accordingly your partner would do well to consider seeing a solicitor that specialises in TLATA claims to prepare a full assessment of the position.

Customer:

Joshua, we will of course do that in due course. Can I explore a couple of other aspects and or relating to our next move with you please ?

Joshua :

His brothers rights depend in part upon whether your partner accepts that he owns the property on the basis that it is to be divded between him and his brothers. based on what you say above, his brother has no right to remain in the property and your partner can proceed as above. However if he does accept that he holds the property as above, any rent that is demanded until brother moves out may need to be pro rataed to adjust for the brothers share of the property. Equally however his brothers share of the property (if accepted) may be pro rated to adjust for an "occupation rent" reflecting the brothers enjoyment over the years of the property rent free whereby his capital share is reduced and accrued to other shares.

Joshua :

Yes certainly..

Customer:

Ok, so if we were to galvanise and finally take this on, where would we start? by serving notice on the brother? It would surely be better to sell without a sitting "tenant" ?

Joshua :

First of all the question of whether your partner accepts he holds the property on behalf of him and his brothers as above or whether he intends to claim the property as his own.

Joshua :

Do you have an idea as to his position on this?

Customer:

I actually think I should ask his this again because I am not sure he has until now distinguished between those 2 possible positions, in legal terms

Customer:

But I think he will say

Customer:

that he is the sole owner, the brother who lived there (and has caused so much heart ache) will not receive anything further - the rent on the market for a 5 bed house in South London must be around 200K over 10 years, I know he intends to give the younger brother an amount, he has always struggled and my partner wishes to help him. In terms of the mother, my partner and she do no longer speak

Customer:

The whole affair has been very painful and caused my partner not to be able to be visited by his children and grand children in the house because of the behaviour of the brother residing theer

Joshua :

Thanks. I think you partner will need to consider his position in this respect carefully. If he admits the above resulting trust was the position when he acquired it, it allows the opportunity for competing claims from both his brothers for their shares. As above it is possible to apply to adjust the resident brothers share to account for his occupation of the property and from what you say he intends to credit his other brother anyway but your partner will need to decide the position he is going to take on this. In any event however he is the legal owner of the property and therefore can serve notice on his resident brother as above to evict him.

If his resident brother refuses to leave, he can apply for possession proceedings. If the resident brother however can either a) prove a share of the property is his or b) your partner admits the same subject as above, then there is the possibility for his resident brother to bring a TLATA application of his own in order to determine his share if any of the property which is why your partner must be clear on his position in relation to the same before he starts.

Joshua :

Is there anything else I can help you with?

Customer:

No you have been brilliant and very clear in your answers - thank you

Joshua :

A pleasure. I hope your partner is successful in resolving the matter. Not a straightforward matter and unlikely to be pleasant but hopefully the above gives a place to begin.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

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