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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33325
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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For Aston Lawyer.. Background: I am not a beneficiary of

Customer Question

For Aston Lawyer..
Background:
I am not a beneficiary of the estate of my sister who passed away on November 8 last year. However, I currently own 75% of a flat which is registered in my sister's name. When our mother died in 2011 she left 75% of her flat to my sister, with 12.5% to me and 12.5% to my son. I purchased my son's share from him at that time, and this agreement was formal and in writing so that the flat could be registered in my sister's name as the sole proprietor with absolute title, but with a restriction in my favor, written in Section B, Proprietorship Register of the Register of Title, such that "No disposition of the registered estate by the proprietor of the estate is to be registered without a written consent of Gordon Pace of 12718 Villawood Lane, Houston, Texas, USA". My other 50% ownership of the flat is the result of a verbal agreement which my sister made with me just after our mother's death to compensate me for debts I paid on my sister's behalf when she lived in the USA and had to return to England at very short notice in 1995. At that time, my sister and I agreed to rent the flat until property values improved. We had planned to sell the flat sometime this year and split the proceeds, 75% to me and 25% to her. When my sister was hospitalized in September 2013, and knew that she would die before we could sell the flat, she expressed a desire to several people (five that I know of, including me) that she wanted to amend her will to leave her share of the flat to me. Unfortunately she passed away on November 8, much more quickly that the doctors had predicted, before she discussed it with the beneficiaries of the will which she wrote in 2004, and before she changed her will in writing. There are three beneficiaries and I have requested that they write a Deed of Variation to give me my sister's share of the flat. One (my son) has agreed and the other two (her step-sons) have not yet responded, positively or negatively, to several verbal requests and two written requests I gave to them all on November 19th and 29th last year.
Questions:
1. Are there any limits to my right to withhold my written consent to registration, thereby preventing the sale of the flat?
2. Can I continue to withhold my consent indefinitely, thereby requiring that the executors continue to conserve the empty property at the expense of the estate until we reach an agreement - to bargain with the other two beneficiaries that they must assign at least 75% of the flat's value to me in order to be able to sell it?
3. Are there any other legal avenues open to me to convince the two silent beneficiaries that they should do the right thing in memory of the step-mother they claim to love as their own mother?
4. What legal means are available to the executors, if any, to force me into consenting to the sale and registration of the flat?
Thanks,
Gordon Pace
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare and I will do my best to help you but I need some further information first.
Are you happy for me to continue since my colleague is off line still - or would you rather wait?
Clare
Customer: replied 2 years ago.

Thank you, Clare, for the quick response. I am writing from the USA, so I do realize what time it is there! Within reason, speed is not my primary concern. I don't want to offend either of you, but I suppose whichever has the most experience in this area would be my choice - I'll leave that up to you :-)


Thanks,


Gordon Pace


 

Expert:  Clare replied 2 years ago.
Hi
Then I shall let him know that you are waiting!
Clare
Customer: replied 2 years ago.

Thank you Clare - standing by.


Gordon Pace

Expert:  Clare replied 2 years ago.
Hi
It appears that he is not available at the moment so I shall give you a response if that is ok - although I fear it is not the response that you hope for
All the questions can be answered in one.
You can withhold your consent as long as you wish - but the Executors can then apply to the courts for an Order for Sale - which WILL be granted - and claim the costs from you.
There is no pressure that you can bear to force the beneficiaries to go against what is in the Will as thelaw is clearly on their side.
I am sorry - I know that this is not what you hoped for
Clare
Customer: replied 2 years ago.

Thank you, Clare.


What benefit does the restriction bestow on the person in whose name the restriction is written?


Is there anything I should do to protect my documented 25% ownership share of the flat before I consent to the re-registration at the time of sale?


Regards,


Gordon

Expert:  Clare replied 2 years ago.
Hi
The Restriction means that no change can be made to the Title Register
If the property is not going to be sold then it would be sensible for the actual ownership to be reflected in the Title deeds and you should request that
Clare
Customer: replied 2 years ago.

Thank you Clare - thanks for staying with me. I apologize, but I'm still unclear on the concept of the restriction.


 


I interpret Article 4 of "Title absolute" to mean that my "written consent" controls only the "registration" of the estate by the 'proprietor" (now the executor of the will) and not to control the act of disposing of the estate, which could be before or after the registration. Do you agree? Of course a diligent buyer would not allow any payment to be made until after receipt of my written consent, so registration after disposal is highly unlikely. Essentially this means that a deal won't be consummated until after I sign the written consent.


 


However, if an Order for Sale is inevitable, without any restriction on the proprietor, perhaps my "written consent" should be called a "written acknowledgement of notification" - acknowledgment that I am aware that the property has been sold, or is about to be sold. Is that the true intent of the restriction - to ensure that I won't find out about a sale after the event?


 


Is the seller of the property required by law to advise me of the value of the sale, and therefore the value of my 25% ownership?


 


Is the seller of the property required by law to advise me of the basis for the amount agreed upon with the buyer? In other words, how do I know that the seller has not made a deal with a friend for a low price in exchange for a kickback?


 


Thanks again for clarification.


Gordon

Expert:  Clare replied 2 years ago.
Hi
No one will purchase the property with this restriction in place as they will not be able to register their ownership.
The sale price of a Property is recorded by the Land Registry
You are I think creating anxieties where there need not be any
Clare
Customer: replied 2 years ago.

Thank you, Clare - almost there!


 


You answered my first question regarding my interpretation of Article 4, and my third question regarding the documentation of the sale price, but I don't have a response to the other two questions:


Is that the true intent of the restriction - to ensure that I won't find out about a sale after the event?


Is the seller of the property required by law to advise me of the basis for the amount agreed upon with the buyer?


You may be correct that I have anxieties that don't exist, but I would appreciate a better understanding of the situation, which answers to my questions would provide,especially Q4. I hope that you can respond.


Could you let me know how the public can access the Land Registry records so that I can get the sales price of the property per your response to Q3?


 


Thanks for your support,


Gordon


 


 

Expert:  Clare replied 2 years ago.
Hi
No the restriction prevents a transaction taking place as it cannot be registered
Not necessarily - but since there cannot be a transaction without your agreement the point is moot
Clare

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