Hello and thanks for using Just Answer.
My name is XXXXX XXXXX am happy to assist you with your enquiry.
Are you able to scan and email me a copy of the Trust Deed, as it all depends on what it says as to whether you are able to settle it?
I responded but it seems my reply has been lost in the ether. In reply I am unable to attach a scanned document as your system will not allow it, sensibly for security reasons.
The Trust deed states that the property transferred to her under the right to buy scheme for the sum of £15600 on 24 Sep 1990. At the same time both she and I as a beneficial joint tenant signed the deed which states:
My mother holds the property in trust and the proceeds of any sale or income before sale is to be held in trust for myself. She was also allowed to reside in the property but formally specifically required to pay all outgoings whilst the property is held in trust.
She has failed to do this and I have paid all insurances since 1990 following her refusal to do so, and during 2009/10 I was forced to refurbish the property as it was becoming run down, insecure and no longer weatherproof. This cost me approx. £10000. Again my mother flatly refused to accept any responsibility.
The trust deed states she can reside in the property, it doesn't place a time limit nor does it state indefinitely. The property now requires more maintenance to make the gas system safe, it hasn't been serviced or maintained since 1990 and British Gas have issued a certificate of non conformity and poor safety. As ever, my mother refuses to sort this problem out.
I would like to sell the property in order to stop the constant demand of me maintaining a trust set up with the aim of benefitting me.
Just so I am 100% clear, could you please confirm that the property is still jointly owned by both of you?
Could you also provide me with the exact wording from the Trust Deed where it mentions your Mother's right to remain living in the property?
The land registry deed has my mother as the owner but there is a caution on this which names me and the trust deed. The exact wording of the Trust deed is:
The Trustee declares that she holds the property in trust for the purchaser as the beneficial joint tenant.
The exact wording regarding her living in the property is: The Trustee shall be entitled to reside in the property and shall pay and bear all the outgoings thereof.
Thanks for your reply.
I must say the wording in the Trust Deed is not great, but if all it says is that she is entitled to remain in the property and is responsible fo rthe outgoings, this would not give you any legal power to demand that the property be sold in order to
realise your interest under the Trust Deed.
If the Trust Deed had read "she is entitled to remain living in the property, subject to paying all outgoings" then this would give you more of a right to demand a Sale.
As with all cases of this nature, if it went to Court, the Court always looks at what the intentions of the parties were at the date the Trust Deed was signed. Although it is clear that your Mother should be responsible for the outgoings (as she is living there!), her non payment of these outgoings would not normally be sufficient for a Court to order a Sale, under the terms of any Trust Deed.
With Right to Buy Trust Deeds, it is normally seen that the beneficiary (you) is entitled to the proceeds of Sale as and when the property is sold, but as it is your Mother's residence, the Courts are not normally keen to order a Sale even if the Trust Deed had been worded to say she was entitled to remain in the property subject to paying the outgoings.
I hope this assists and you may wish to follow this up with a chat with a local Solicitor, but if you wished to pursue matters, we Solicitors would normally obtain a Barrister's opinion before proceeding with any Court action.
Further to my earlier questions, my mother has now stated that she intends to bequeath the property to a nephew. I understand she has approached a solicitor to draft a new will.
I have spoken to her and written to advise her that she is unable to bequeath the property as it is held in trust. I also requested she provide me with a Notarised true copy of the original document. She refused my request and appears to be ignoring my advise.
She is now infirm and needs regular care at home. I am concerned that she is not longer fit to act as a trustee. Are my wife and I able to request the trust be ended under the Saunders - Vautier ruling. We are both well and of legal age. I am concerned my mothers poor health and failure to understand/carry out her responsibility under the trust are immediately detrimental to us as beneficiaries, and given her plans to bequeath the property to a nephew she is knowingly acting and planning to frustrate my wife and I as beneficiaries. She is still failing to maintain the property appropriately despite my requests that she does so.
Your advice again appreciated.
Thanks for getting back in touch.
To enable me to assist you, you will need to re-post the above request as a New Question.