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Alex J.
Alex J., Solicitor
Category: Property Law
Satisfied Customers: 3557
Experience:  Two years conveyancing experience.
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Hi, My father has just transfered a lean on my brothers property

Customer Question

Hi, My father has just transfered a lean on my brothers property to me. The lean was put on my brothers house, as at the time he could not afford to raise a deposit and he verbally said he would pay my father back. but after a year he tried to sell the property and told his lawyer my father had gifted the £37,000 to him of course the lawyer told him he would have to pay my father back first on completion of the sale. He then withdrew it from the market. We are now five years down the line and my father has cancer but is in remission thank goodness. My father has now transfered the debt to me as it makes him very upset to think that his son has not paid him back. My brother knows how ill my father has been yet has had no contact with him since my father helped him. My father has just told me the transfer into my name is ***** ***** it is registered on the land registry. He has suggested I change the terms & conditions and retrieve the outstanding amount to buy further property. How do I go about this bearing in mind my father has had no return on his investment for five years?
Submitted: 2 years ago.
Category: Property Law
Expert:  Nicola-mod replied 2 years ago.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Nicola
Customer: replied 2 years ago.

Hello

Please continue to find a professional to answer my question as I need to know what to do next!

Kind regards

 

Christine

Expert:  Nicola-mod replied 2 years ago.

Hello,

We will continue to look for a Professional to assist you.

Thank you for your patience,
Nicola
Expert:  Alex J. replied 2 years ago.
Hi,

Thank you for your question and welcome.

My name is ***** ***** I will assist you.

Have you formally assigned the debt into your name with a "Deed of Assignment"?

Kind regards

AJ
Customer: replied 2 years ago.

I am not sure all I do know is that the lean on the property is now in my name and it has been changed on the land registry.


 


kind regards


 


Chris


 

Customer: replied 2 years ago.

Could you tell me what a deed of assignment is and if I do not have it , how can this be gained. please?


 


kind regards


Chris

Expert:  Alex J. replied 2 years ago.
Hi,

Thank you.

For the debt to validly in your name you need to assign it from your father to yourself. In order to make the assignment valid you then have to give your brother written notice of the assignment. The easiest way to do this, is to get a local solicitor to draft it for you. It should cost no more than £200 pounds.

In relation to the other party of the question when did your brother say he would repay your father? Once the property was sold?

When was the last time you or your father made a demand for repayment?

Kind regards

AJ

Customer: replied 2 years ago.

When my brother originally borrowed this from my father is said he was going to pay him back regularly over a couple of years. But this was 5 years ago!


The lean on the property is to assure he pays it back in full if the property is sold.


My father has been too ill to do anything about it but now he wants me to get the money back for a new property.


My accountant suggested we add interest to the sum he owes can this be done? we have never asked him to pay it back till now 5 years later.


kind regards


Chris

Expert:  Alex J. replied 2 years ago.
Hi,

Thank you.

Firstly you cannot add interest unless:
1. You have a written contractual right to charge it;
2. You have a Judgment in court where you have claimed the interest.

What I suggest you do (once you have formerly assigned the debt to yourself and served your brother with notice) is get a local solicitor to write to your brother with a formal demand for the money. This is important because if it is only a lien and not a charge then you could be danger of becoming statute barred from claiming the money after 6 years. It is vital the demand comes from a solicitor so that he knows that you have taken advice and know your rights. Once you have issued him with a formal demand the money is owing so you can explore options for example:
1. Apply for an order for sale if it is a legal charge;
2. Agree a "Forbearance Agreement" with him. This would mean you agree a set window for him to repay in return for not calling in the debt, and he agrees to pay you interest?

Until you have completed a correct assignment of the debt and made a formal demand, I cannot see how you can take any action as your brother will just say that he does not owe the money to you. Hence you need to put him under some pressure.

I look forward to hearing from you.

Kind regards

AJ
Alex J., Solicitor
Category: Property Law
Satisfied Customers: 3557
Experience: Two years conveyancing experience.
Alex J. and other Property Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi AJ


I have spoken to my fathers solicitor whom says she has put a charge on the property in my name. The charge she says is without interest!


She also says that we will have to wait till the my brother decides to sell the house before the money is returned which we find wholly unsatisfactory!


One good thing is that it is a legal charge!


 


kind regards


Chris

Expert:  Alex J. replied 2 years ago.
Hi,

Thank you.

It is definitely more positive that is is a legal charge, that means you are a secured creditor.

As a start get your furthers solicitor to arrange a formal notice of assignment of the debt to you.

I am still of the opinion that if there was genuinely no written terms and repayment was not agreed as contingent of the house sale then it should be within a reasonable period of time. On that basis it may be worth exploring a formal demand for repayment. That way you could potentially seek an order for sale under your charge.

Kind regards

AJ
Customer: replied 2 years ago.

Hi Alex


I have arranged an appointment with the local solicitor to further this action and thank you as you have given me direction.


Could you tell me please are you a QC?


 


kind regards


 


Chris

Expert:  Alex J. replied 2 years ago.
Hi,

Thank you.

I am afraid I am not a QC. I am just a solicitor - there are very very few solicitors that are QC's - it is mostly barristers that go on to become QC's, if at all.

Can I assist any further?

Kind regards

AJ
Customer: replied 2 years ago.

Hi Alex


No nothing at the moment but may come back to you if the visit to the local solicitor does not go well.


 


Thank you once again


 


Regards


 


Chris

Expert:  Alex J. replied 2 years ago.
Hi,

Thank you.

No problem.

I wish you the best of luck.

Kind regards

AJ

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