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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My sister owns my mothers property. My mother has a 'lease

Resolved Question:

My sister owns my mothers property. My mother has a 'lease for life'. She is now in full time residential care as she can no longer look after herself, and doesn't need the property anymore . My sister needs to sell the property to fund her own retirement. My Mother has mild dementia. How does my sister go about getting my Mother to give up her lease for life. We do not have Power of Attorney.
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

May I clarify with you whether your mother has a lease - i.e. your sister has granted a long lease which is registered at the land registry or whether you mother has a lifetime interest in the property under a life trust please? They achieve much the same thing but in very different ways.
Customer: replied 2 years ago.

My sister has granted a lease for life which is registered at the land registry

Maureen King

Expert:  Joshua replied 2 years ago.
Many thanks for the confirmation. Does your sister have access to the lease to confirm its terms?Does your mother continue to have mental capacity - I note you refer to mid dementia? Has she been assessed by her GP or a consultant with regards ***** ***** capacity?
Customer: replied 2 years ago.

My sister has access to the lease to confirm its terms,

My Mother was assessed by her social worker in March that she no longer has the capacity to understand her safety and needs. That social worker also asked my Mother if I could look after her money for her ie pay her bills, cancel her direct debits etc and deal with DWP for her. DWP have made her appointee. My Mother agreed to this and is very happy with the arrangement.

We were hoping that if my Mother signed a letter obviously witnessed by independents it would be enough for the land registry to allow for the sale of her house.

Hope this helps

Expert:  Joshua replied 2 years ago.
thank you. There are three ways in which your sister can bring an end to the lease granted to your mother which with your permission, I will address in turn:1) under any determination provision in the lease. If the lease includes a term which provides that your mother's lease will terminate if she leaves the property for more than a certain period - normally 6 months is provided for if such a provision exists - then your sister can move to terminate and determine the lease under the provisions of such a clause. Whether such a clause exists, will depend upon whether the solicitor the draft of the lease thought to include one or advised your sister in respect of including such a provision. Such provisions are relatively common in leases of this type to address precisely the sort of situation but there is no guarantee that provision will be there. If your sister can identify such a clause within the lease then this provides a straightforward way for your sister to determine the lease and make an application to the land registry to remove the lease from her title.2) if there is no such provision as above, if your sister can identify that your mother is in breach of one or more of the lease covenants, she can serve upon your mother something called the section 146 notice requiring your mother to remedy the breach failing which warning that your sister will move to forfeit the lease. This course all sounds very formal but it is the specific procedure that must be followed if your system proposes to forfeit the lease. It may of course be that your mother is not in breach of any of the lease covenants in which case this approach could not be used but if your sister can identify one or more breaches of covenant, in particular, failure to pay the ground rent charge, your sister may be able to forfeit the lease using the above approach;3) your mother voluntarily signing a deed of surrender. A deed of surrender is a formal document which surrenders her lease and can be registered at the land registry to remove the lease from the title. There will be a difficulty with this however if your mother does not have capacity as it is a requirement that she has mental capacity in order to sign such a document for it to be valid and not subject to challenge. Having said that, it is questionable who would challenge the document because the property is from what you say likely to be of any use to your mother and is not an asset which the local authority can claim to contribute towards care fees. Ideally, your sister would be able to obtain a further assessment from a doctor or psychiatrist confirming that your mother does have sufficient capacity to understand the document - the social workers assessment is not legally binding, but rather it's just her opinion. Alternatively, your sister could take the somewhat cavalier approach of disagreeing with the social worker and simply asking your mother to sign a deed of surrender on the basis your sister believes she has capacity to understand what you signing in the hope that there would be no party that would actually wish to challenge the surrender. I cannot recommend this approach because it carries the above risks but it is an option. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Customer: replied 2 years ago.

Thank you for your advice. I have rated your answer as excellent

Maureen King

Expert:  Joshua replied 2 years ago.
Many thanks. I am glad the above was of some assistance.
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