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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 brother, my ex-husband (who died in 2010, so therefore our

Customer Question

My brother, my ex-husband (who died in 2010, so therefore our daughter), and I still own the freehold on a house that we refurbished into 4 flats, and sold all the flats. My brother has done the accounts, etc. since 2001 and won’t communicate with me about it. When I was doing the accounts there was no income from it, it broke even, so I presume it is the same now, but I am not interested in money from it, in any case.
My daughter and I would like to get our names off the freehold, for several reasons:
1. I have no idea whether he is keeping up the Landlord’s Buildings & Contents Insurance and maintenance, and if he is not, I am worried that he would very soon communicate with me if there was a claim for which we would become liable.
2. I am also concerned about accounts/tax issues, as (a) I have just been made redundant and, for jobseekers I will be required to answer if I own another property other than the house I live in, and then trying to get accounts etc. from my brother would be impossible, so I won’t get any money, and (b) I am hoping to start some self-employment in the near future, and this would be a complication I could do without in relation to tax, etc.
I asked a solicitor a couple of years ago if I could get myself off the freehold, and was told that he would have to agree and sign something. Even though I said I would pay for completing the process (approx. £200.00 at that time), my brother did his usual, stalling and mostly ignoring my communication, and I had to drop it.
Is there any way that I, and my daughter, can get our names off the freehold without involving him in any practical way, e.g. by just informing him of a legal process? Or what are my options, please?
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 :

Do you recall if there is ground rent payable under the leases for the flat you sold please? This would usually be a fairly small amount each year of anything between £0-200 but could be more?

Customer:

Hi,

Customer:

Hi, sorry I pressed the return key, and it sent it as a reply! When I was doing the accounts (from 1992 to 2001) we did charge ground rent from each of the four flats, this was according to the lease agreements, which was the lesser of a calculation of under £100.00 each. I expect my brother is still doing that.

Joshua :

Thanks. Do you have any interest in claiming your share of that money?

Customer:

No. I just want to get my name off the freehold ownership, and so does my daughter as beneficiary of her father's will.

Joshua :

thank you.

Joshua :

there are two ways in which you can seek to remove your name from the title. The first as if the owners of various leasehold flats apply to purchase the freehold using statutory rights. Of course this is outside your control but there is nothing stopping you from contacting them to encourage them to do so.

the other is that you give notice to the other freehold owners of your wish to either have them acquire your share at a price you agreed between you or failing which force a sale of the freehold on the open market under the provisions of the trusts of land and appointment of Trustees act

Joshua :

this process can be commence by serving notice upon your fellow freeholders advising them that require them to either require your share in the freehold at a price you propose which can be anything between nothing and figure you choose to nominate within three months of the date of the notice or such shorter time as you consider reasonable failing which you will apply for a court order ordering that the freehold is offered for sale on the open market

Joshua :

you are of course entitled to your share of ground rent income they from what you say, you do not wish to make a claim in this respect

Customer:

Hi, the first seems like a long and complicated route, and I believe we started this before, but could not get all leaseholders to agree/respond (this was when there was some strained, but fairly active communication between myself and my brother). Also I am hoping for a reasonably quick and painless process. The second option sounds more feasible. Presuming my brother would not respond to any communication, I then have to apply for a court order. 2 questions: Do I have to offer the leaseholders right to purchase again, before starting this process, and secondly, how does one apply for a court order? Thanks

Joshua :

The initial notice would be in the form of a clearly written letter including the above information. from there, you have to proceed to litigation, an application can be issued using form N208 to the court but you would be wise to appoint a solicitor to act for as TLATA claims are not entirely straightforward to progress as a lay litigant


Joshua :

A typical TLATA application might look something like this on form N208:


You may apply to the court for: 1. A Declaration that the Property and the net proceeds of sale thereof belong to the Claimant and Defendant in shares ??:?? or such other shares as the Court may decide. 3. An Order that the Property be sold with the Claimant to have conduct of the sale and that the Defendant do join with and co-operate with the Claimant and take all steps and execute all documents necessary to effect the sale of the Property failing which a District Judge of this Court will have the ability to sign such documentation in place of the Defendant. 5. Such provision as the Court shall see fit in relation to occupational rent. 6. Such further or other relief as the Court may deem appropriate.


Joshua :

if the freeholders to be transferred, a right of first refusal must be offered to the leaseholders first before there is any transfer in the freehold and this can be done and indeed must be done regardless of whether you proceed along the lines of an amicable settlement or an application to the County Court.

Joshua :

An application to the court can be made using form N208

Joshua :

http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/n208-eng.pdf

Customer:

Thank you. That sounds quite complicated and expensive! I suppose I could write to my brother informing him of what I could do, and hope that he would then agree to the easier option of just signing to take over the full freehold under legal requirements. If that worked, would we still have to offer to leaseholders first again?

Joshua :

the core processes not enormously expensive itself. The expense creeps in if you retain a solicitor which is generally worthwhile doing but of course inevitably adds to the cost. You may find as you say that a formal notice as above with reference to the above procedure will spur your brother into action in and of itself. however the transfer of title occurs, be it amicably or through litigation, the freehold must first be offered to the leaseholders you have a right to buy the same at market value

Joshua :

Is there anything else I can help you with?

Customer:

Could I just ask one more question? Could I just offer to give my share (and my daughter would probably want to do the same) to the leaseholders? I expect that whilst that would sound easy in principle that would work out to be an even more complicated process.

Joshua :

you certainly could however the difficulty arises in that in order to transfer the legal title, all joint owners must agree jointly. however, one thing that does occur to me is that if you are simply looking to divest yourself of your financial interest in the freehold, i.e. your share of the money that the freehold is worth, and it is worth some money albeit not a huge amount a simple way of doing this would be to execute a straightforward bare trust deed declaring that you hold your financial interest in the freehold on trust for, for example your brother or one of the other co-owners

Joshua :

by doing this, you would still be a legal owner but you would no longer have any financial interest in the freehold because you have declared that you have transferred that interest to which other person or persons you refer to in the trust deed. A bare trust deed is sufficient evidence to demonstrate that you no longer have a right to any income or capital from the freehold and will satisfy HMRC and benefits office in terms of be able to answer future questions

Joshua :

a local solicitor can draw from simple their trust deed for you - the likely cost will probably be £125-200 or I can do so if you wish for a fee of say £60 if that is agreeable.

Joshua :

it is not quite as perfect solution as removing yourself from the legal title together but it does strike me that this would satisfy the most significant of your requirements for a fraction of the cost and hassle that the transfer of the freehold would entail

Customer:

That sounds like a very good solution. Just one question arises - if any claim arose because my brother was not doing things correctly (e.g. maybe not insuring it) would I still be liable under the Bare Trust deed? If that would also remove me from that responsibility I would be very interested in your services please? If all that works, and my daughter wants to do that too, I expect she will have to contact you separately?

Joshua :

unfortunately this is a weakness in respect of the above proposal. You would remain a legal owner and therefore would have liability for any debts that arose. It is quite possible to provide for a trustee indemnity in the trust deed but this would require the signatures of all the other freeholders and therefore does back to the same problem that I assume one or more of them would refuse to sign. However, the risk is likely to be manageable on the basis that the freehold cannot be mortgaged and the income is relatively minor and if your brother has practice been receiving the income then any tax penalties or claims thereon could fall to him by way of a counterclaim. If you are concerned about insurance, you could consider taking out a contingent buildings insurance policy to cover this event for a one-off premium using a company such as the following:
http://www.gcs-title.co.uk/instant-issue/policies-at-a-glance/1/contingent-buildings/

Joshua :

such a policy could indemnify you against any such claims

Joshua :

is there anything else I can help you with?

Customer:

Thnak you you have covered quite a lot there altogether. I appreciate that. I will need to think about these options and discuss with my daughter as well, but if I wanted to do the bare Trust deed thing through you, do I get back to you through this system, or how? Thank you so much for your help. Eileen

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 you would like me to prepare a bare trust deed there is an option to add a bonus payment now or later on. If you can do this when you want to proceed and let me know I will take some details from you to prepare the trust deed.

Customer:

Will do. Thank you very much again

Joshua :

A pleasure.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi there Joshua,


I have decided to go ahead with the Bare Trust Deed thing that you mentioned so that I can satisfy HMRC, sign on, etc. and give me some time, if I can also check first if I would still have the same rights to go ahead with offering freehold to brother with time limits and then do a court order to force onto the open market? (The insurance indemnity policy would be a last resort, as I would prefer to get my name off the freehold completely). If this is the case may I take up your offer to do it for me at the agreed amount. I signed off wrong last time, so can you explain how I then go on to pay you for the extra service? eileen


 

Expert:  Joshua replied 3 years ago.
Hello. I am away at the moment. I am back this evening. May I revert to you then? Re payment you should be able to add a bonus payment from your customer home page. I will contact you when I am back in any event. Kind regards
Customer: replied 3 years ago.

Hi,

 

I am sorry but the payment system got complicated, and the bonus cannot be changed apparently.

 

I have phoned the site and they have said that I can do one of two things.

 

1. After you have answered my last related question (about whether a Bare Trust Deed would affect my rights, etc. as above), and if the answer is that it would not affect my rights, and I want to go ahead with the Bare Trust thing, I can then phone the site and ask them to add £60.00 onto the cost of the question being answered, and that way you can get the £60.00 extra for doing the Bare Trust thing.

 

OR 2. If the answer is that doing a Bare Trust would affect my rights in relation to the freehold, and I wouldn't be able to get a court order to force a sale of the freehold, then I can simply finish the question and pay the original agreed amount.

 

I hope this resolves any issues confusion around the payment system. I would be grateful if you could answer the last part of the question that I asked a couple of days ago (about my rights).

 

Thank you

 

Customer: replied 3 years ago.

You replied



12 May 2014 06:08 EST




Hi,


 


I am sorry but the payment system got complicated, and the bonus cannot be changed apparently.


 


I have phoned the site and they have said that I can do one of two things.


 


1. After you have answered my last related question (about whether a Bare Trust Deed would affect my rights, etc. as above), and if the answer is that it would not affect my rights, and I want to go ahead with the Bare Trust thing, I can then phone the site and ask them to add £60.00 onto the cost of the question being answered, and that way you can get the £60.00 extra for doing the Bare Trust thing.


 


OR 2. If the answer is that doing a Bare Trust would affect my rights in relation to the freehold, and I wouldn't be able to get a court order to force a sale of the freehold, then I can simply finish the question and pay the original agreed amount.


 


I hope this resolves any issues confusion around the payment system. I would be grateful if you could answer the last part of the question that I asked a couple of days ago (about my rights).


 


Thank you


Expert:  Joshua replied 3 years ago.
My apologies for the delay in reverting to you. The bare trust transfers the value element of the freehold a third party (your brother). It does not as you are aware effect the legal ownership of the freehold. You can still in due course seek to transfer the legal title away from your name with or without a bare trust in place though would need to have the consent of the other legal owners to do so or a court order.

I would be very happy to prepare a document for you if you would like me to. I am sorry the payment is causing a little difficulty.

Kind regards
Customer: replied 3 years ago.

Hi Joshua,


Thank you for reply, and sorry I was not able to continue yesterday. I would like you to do that for me please. Customer service have said that I have to start a new thread to complete this, so that I can pay you the £60, so would it make sense to start a question at the £47 rate and then add £13 as a bonus after completed, if that covers it, or let me know otherwise. Apparently all the information you need to do this has to be conveyed through the site question (which is a bit worrying on confidentiality) so presumably we would sort all that out before ending the question/thread. (I am afraid that I am finding the rigidity of the system quite confusing when it comes to further work, but it could be me being very dim, so I apologize for that). If this sounds the right way to go about it please let me know, and I will start a new question/thread to complete the process. Thank you

Expert:  Joshua replied 3 years ago.
Thanks for your reply. No you are allright about a lack of flexibility at present. They have introduced additional services functionality on the US .com site but have not yet introduced the same services on the .co.uk site which is rather limiting at present.

If you are happy to start a new question, preferably if you could open a question using the lowest question value available and then top up to £60 using a bonus once I reply to you that would be ideal. If you ask for me in the first line of your question it will ensure no one else picks it up by mistake.

We can then communicate by email directly for your privacy.

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