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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My Uncle owned a piece of land. He had been ill and had lived

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My Uncle owned a piece of land. He had been ill and had lived with my Mum, with her looking after him, for about 8 years. He died without leaving a will, but it was always understood that she would get the land given her time taking care of him. My Mum got Grant to administer his estate and she shared out all his money between her siblings and registered the land in her name. The siblings we thought were happy with this and it stayed this way until my Mum died intestate 6 years later in 2002. My Uncles and Aunts then decided that they wanted a share of this land - it is registered in my Brother’s name. We have received a letter from the Land Registry saying that there is a caution under section 54 of the Land Registration Act 1925 in favour of out Uncles and Aunt – the cautioners – who wish to protect their interest in the land. It seems to us that all the while our Mother was alive they knew the land was hers, but now she is dead they want to claim a share. Can they do that? We are not sure what to do.
Submitted: 3 years ago.
Category: 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 :

You mention that your mother registered the land in her name. May I ask exactly what she did in this respect. The reason I ask is that based on what you say the Land Regstry still have the land registered in your uncles name?

Joshua :

Do you have any evidence to support the understanding you refer to that your mother was to receive the land please? Was anything ever recorded in writing to this effect? If not are there any witnesses who could attest to this arrangement?

Customer:

No to all of those questions.

Joshua :

Thanks For the avoidance of doubt are you saying you don't know what she did in terms of registering the land in her name please?

Customer:

She went to court and got the judgement which allowed her access to his bank accounts which she distributed equally with her siblings. And with this judgement she registered the land with the land registry in her name. All her siblings knew this.

Joshua :

Thanks. I am trying to reconcile your above post with whay you say in your original question ..."this land - it is registered in my Brother’s name." Based on what you say above the land should be registered in your mothers name but what you say originally suggests it is not. Should we conclude that your mother may not have completed the registration process with the land registry or is there another explanation do you think?

Joshua :

Did your mother register the land in her name then subsequently transfer it to her brother?

Joshua :

Sorry ... *your brother?

Customer:

She registered it in her name. When she died intestate, my brother did the same as she did. Went to court to get permission to deal with her affairs and registered the land in his name.

Joshua :

Thank you for the clarification. The legal position is that your mother as your uncles administrator had legal authority to transfer the land into her name. However the intestacy rules provide that your uncles assets should be split equally between all of his siblings (assuming he had no spouse or children) and accordingly the starting point is that your uncles other siblings have a right to claim an interest in the land by virtue of the intestacy rules. However whether they can sustain a financial interest depends upon what evidence can be brought to bear...

Joshua :

There are two aspects that can effect the siblings claims in relation to the land. First if your uncle promised the land to your mother then your mothers estate can claim ownership on the grounds of something called promissory estoppel. This is the premise that your uncle prmised the land to your mother in return for her looking after him. If this can be shown on the balance of probability this is sufficient to establish a claim by your mothers estate to the land despite the intestacy rules.

Joshua :

In addition if you can show that your mothers siblings at the time agreed that the land would be transferred to your mother but then only later changed their mind after he passing then again this could be sufficient to overcome their rights under the intestacy rules.

Joshua :

Obviously I appreciate it is easier said than done to adduce the above evidence this many years down the line. Your brother can apply to cancel the caution on the land using the following form however if the siblings object they can give their reasons to the Registrar and the registrar will decide whether he considers the siblings have provided sufficient evidence to justify a potential financial interest. If he does the caution will remain and a court application would ultimately be required to resolve any dispute.

Joshua :

http://www.landregistry.gov.uk/_media/downloads/forms/CCD.pdf

Joshua :

Any court application would decide the claim principally upon whether your brother could show grounds for overcoming the intestacy rules under the above bases. Written evidence in this respect can be particularly strong - for example a letter from your uncle to your mother promising the land to her - but failing this witness statements from parties with knowledge of the circumstances.

Joshua :

Is there anything above I can clarify for you?

Customer:

So just to confirm my brother can apply to cancel the caution using the link you attached. The Registrar, I presume at the Land Registry, then gets back to the siblings telling them this and unless they object then my brother could go ahead and sell the land if he wishes. So this Registrar has the final say on whether the siblings have an interest or not?

Joshua :

Exactly so. The registrar (Land Registry) will contact the cautioners at the address for service they have given in the register to notify them of the application and that if they object to contact the registry within a certain number of days. If they don't the caution will be removed. If they do then the registrar will consider any evidence they provide to mae a decision as above.

Joshua :

The registrar does not have the final say. He simply makes the decision about whether to remove the caution or not. Actually a caution does not legally prevent a piece of land being sold. It simply tells a buyer that someone else claims a financial interest in the land and so in practice it will put most buyers off so this is largely an academic point. The person who ultimately has a final say would be a county court judge if the caution remains and your brother or your aunts and uncles wish to litigate to resolve the matter.

Customer:

I have just copied the form and don't see anywhere where my brother can make his case other than attaching a letter explaining the situation under item 8 on the form.

Customer:

So the best outcome is for the registrar to remove the caution and if the siblings are not happy with that then they will have to take court proceedings.

Joshua :

That is because at this stage he doesn't have to. All the form does is apply to remove the caution. The registrar will write to the cautioners giving them an opportunity to object. If they don't it will be removed. If they do then the registrar will contact your brother as the applicant and notify him of the objections and ask him to submit his reasons and any evidence of support as to why it should be removed.

Joshua :

yes ultimately if the registrar receives objections and is satisfied that there does appear to be enough evidence to justiy the caution it will need to progress to the county court if the matter cannot be resolved amicably between the parties.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Customer:

That's fine thanks for you help.

Customer:

Can I get a copy of our conversation?

Joshua :

A pleasure. Yes you should be able to copy and paste it inot a document of your choice.

Joshua :

Alternatively I can ask customer services to assist you if yuo have any difficulties with this?

Customer:

No, thanks. Just worked it out.

Joshua :

Thats great. If I can assist any further as the situation develops please do not hesitate to revert to me

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 please reply back to me though.

Customer:

Thanks.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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