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Harris
Harris, Law Specialist
Category: Law
Satisfied Customers: 2314
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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My father passed away 9 months ago. He divorced my mother

Customer Question

Hi
My father passed away 9 months ago. He divorced my mother and remarried before his death. The property was owned with my mother as joint tenants. From my understanding she automatically owns the whole of the property. The main issue we have discovered is that my father had charges against him put onto the property from monies he'd owed to investors. What happens to those charges now he is deceased? Does my mother inherit them? I am the administrator of the eatate but I'm unsure as to how I should go about removing or appealing the charges? Is it relevant as to wheb the charges were enforced I.e during the divorce or after? Any guidance would be much appreciated
Submitted: 8 months ago.
Category: Law
Expert:  Harris replied 8 months ago.

Hi, thank you for your question. The only way to have a charge removed from the property is if the appropriate debt is settled with the debtor. If this cannot be settled from your father's estate then the charge will remain on the property and will be settled if the property is eventually sold by your mother.

I hope this assists you. If you found this information helpful please provide a positive rating using the stars at the top of this page. I will not be credited for your question without a positive rating. Thank you.

Harris, Law Specialist
Category: Law
Satisfied Customers: 2314
Experience: Family Law - Specialist in Divorce, Financial Relief and Children Matters
Harris and other Law Specialists are ready to help you
Customer: replied 8 months ago.
Hi Harris,Thank you for your assistance. I understand what you have stated originally but, as i'm sure in most cases, circumstances aren't as black and white. The estate is insolvent. As far as his estate is concerned it consists of nothing as my mother automatically own the home as the joint tenant. As my father remortgaged the property some 10 years ago even selling the property would not leave the money to satisfy additional charges to the 1st charge being the mortgage. Therefore my mother could wait 20 years to sell the property and be unable to pay the additional charges.A few scenarios to consider:
Firstly if my mother was to give the property back to the bank what would happen to the additional charges?If my mother was to sell the home but the amount would not be significant enough to cover all charges what happens then?Also can the charges not be appealed as the only reason they were passed in the first places was due to lack of appeal. As my father was not residing at the family home and therefore didn't receive any correspondence regarding the charge proceedings. My mother unfortunately buried her head in the sand and didn't inform anyone of these proceedings.Are any options feasible?
Expert:  Harris replied 8 months ago.

Thanks. Please confirm:

-The value of the property

-How much is the outstanding mortgage

-What each charge is for and how much is it for

Customer: replied 8 months ago.
Value of the property is roughly £230,000 at current market value. It would need additional refurbishment before sale.The mortgage outstanding is currently £190,000. My mother has been paying his independently for around 7 years since the separation and has only been making interest only repayments....hence the amount is not reducing anytime soon.Second charge, technically second and third charge as its split into two separate charges but by the same person, are enforced by a solicitor firm representing a former client of my fathers. He had invested in an investment platform around 10 years ago and was the last to be paid. I believe he did eventually receive his initial investment back, but was missing interest. Subsequently I believe his solicitors adviced proceeding with a charge as security. The amount in total is around £125,000. I do know the client as I used to liaise with him previous to my resignation. If there is a potential solution via direct contact I believe I could re-open a line of communication.Technically 4th charge CSA who claim that my father fathered another child out of wedlock back in 1997. They have out a charge of around £40,000 for unpaid hold maintenance. Again nothing was appealed as he had left the marital home. Would it be beneficial to request a DNA? If able to disprove would they have to remove the charge?To summarise in total £355,000 owed on a property worth £230,00. All charges other than the mortgage were in my fathers name solely.
Expert:  Harris replied 8 months ago.

Thanks. The property will obviously be in negative equity given the mortgage and the charges. The charges themselves are not against your father but against the property itself and it would not make sense for them to attempt to sell the property unless they seek to settle it for the minimum amount of return (whatever is left over after the mortgage is settled).

Given that the debts have now been secured against the property you would find it extremely difficult and near impossible to attempt to contest them, especially given that your father has now passed - the time limit for appealing them will have long gone.

Customer: replied 8 months ago.
there is no possible way these can be appealed? Even if they could be proved to be falsely placed on the property in the first place? Or the fact that my mother was totally unaware of them being placed on her property? The court would not allow an appeal on any of the above?That would suggest that people after splitting from a partner would have to regularly check the land registry to check if their previous partner incurs charges so that they can appeal within the appropriate time frame?Surely these unique circumstances would justify an appeal?If the mortgage provider were to repossess the property then the remaining charges wouldn't have much say in that scenario?
Expert:  Harris replied 8 months ago.

As they are joint tenants, the person who put the charge on the property only needs to inform one of the joint tenants. When a charge is put on a property the land registry gives written notice of the charge and any restriction to the registered owners, so the owners do not need to check.

If the mortgage provider repossess the property, then the mortgage will be settled first and then the other charges in accordance with priority.

In relation to the charges, as stated these cannot be "appealed" but you can seek to have them removed - you can see the process here, although they will be heavily contested given that the CSA are also involved - https://www.gov.uk/government/publications/discharge-of-charges/practice-guide-31-discharges-of-charges

Customer: replied 8 months ago.
that was my initial thought with the CSA being one, but as previously stated if I were to contact them to ask for a DNA test to be conducted. Would they have to comply? Depending on the outcome then if it were a negative result, surely they would not have grounds to stop me removing the charge?With the other charges I believe I can speak to the individual and possibly get them removed or at least for a nominal feeMy main reasoning for contacting you Harris was to understand the process for removing these charges and of it was possible. Thank you for confirming his that there is a process and hopefully I can embark on that process in the near future.I did want to ask one more question though, perhaps a more 'off the record' type scenario, but for you'd found yourself in this position. Where your partner had left you and then during your divorce incurred numerous charges on the property etc. Would you try and get them removed? Or just let the property go?
Expert:  Harris replied 8 months ago.

I have not come across a case where declaration of parentage was sought after the death of the father for purposes of clearing a CSA arrears bill. I would imagine that this would be extremely difficult for you to pursue, most notably as you would need to exhume his body to obtain a DNA sample and the main argument would be why he did not do so when he was alive.

In relation to your final question - this is hard to answer as it would depend on the circumstances at the time and the legality of the charges being put on the property, as well as the wider facts and assets of the case

Customer: replied 8 months ago.
I've gone on the assumption that they would be able to verify parentage from a DNA or blood sample from myself? As we are supposedly siblings.Also in regards ***** ***** a solicitor regarding the removal of the charges. Is there a specific field that they would specialise? Essentially what type of solicitor am I looking to instruct?
Expert:  Harris replied 8 months ago.

They would have to be a residential conveyancing solicitor or a civil litigation solicitor, depending on whether the party who has benefit of the charge will be contesting it. If they will not then a residential conveyancing solicitor can assist with applying to the lang registry.

In relation to the DNA test, declaration of parentage must be done through samples from the putative father and not relatives as this cannot determine whether he is the father or not.

Customer: replied 8 months ago.
I agree it wouldn't determine whether or not he was the father but it would determine if the child is any relation to myself and if not would rule my father out as being a candidate as the father surely?
Expert:  Harris replied 8 months ago.

I still do not think that the CSA would agree that such a DNA test would absolve his liability as if he had concerns that he was not the father he would have raised this at the time and undertaken the necessary DNA tests.

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