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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9436
Experience:  I have been practising for 30 years.
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My grandmother died several years ago and, since then, my

Resolved Question:

My grandmother died several years ago and, since then, my uncle has essentially refused to make her half of the house, that was left to them both, available to my mother. He lives in it, won't sell and can't buy her out. What can she do?
Submitted: 9 days ago.
Category: Law
Expert:  F E Smith replied 9 days ago.

Hello - was there a will or anything in writing regarding his occupancy?

Customer: replied 9 days ago.
Hi there - no I don't believe any stipulations were made in the will about my uncle being allowed to live there, the house was simply bequeathed to both siblings equally.
Expert:  F E Smith replied 9 days ago.

Thank you. Is the property still in your grandmother’s name or has it been transferred in to your uncle and your mother’s name?

Was the house empty at the time of your grandmother’s death and your uncle simply decided to install himself?

You say this was several years ago, approximately how many?

Customer: replied 9 days ago.
Hi,I believe it was transferred into both their names, but I am not 100% confident my mother has seen the paperwork to confirm this.
I believe the house was my uncle's official place of residence in the UK before their mother died. He shared his time between the UK and Brazil and is still not permanently back in the UK, he still spends some time in Brazil now.
My grandmother died around 10 years ago.Regards
Expert:  F E Smith replied 9 days ago.

Thank you.

Firstly, your mother is entitled to an occupational rent in respect of your uncle’s occupation of her half of the property. Going back 10 years in a trust arising from a will, that could be a considerable amount of money.

I don’t know why this has waited 10 years because all your mother needs to do is get a firm of solicitors to threaten a court application for an order for sale if he doesn’t agree to put the property on the market and move out. There is no reason why she cannot do it herself but he’s going to take more notice of a letter from a solicitor threatening a court application and substantial legal costs. In circumstances like this, if she makes the application to court for an order for sale she is likely to get it and she is likely to get costs awarded against him in her favour. Because of the relatively clear-cut circumstances here he would be absolutely stupid to not immediately put the property on the market and agreed to assist with the sale.

An application for an Order for Sale is made under the Trusts of Land Appointment of Trustees Act ( TOLATA).
Although I said there is no legal reason why she cannot do it herself, if she has no experience of issuing legal proceedings and court proceedings, she might want to get a solicitor to do it for her.

Once again, because of the relatively clear-cut circumstances here, she may find that she can get a solicitor that will do this on a no win no fee basis.

As there is a clear will, it wouldn’t actually matter if the property had not yet been transferred into joint names although it would certainly help if it had been already.

.Can I clarify anything else for you?

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Best wishes.


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