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Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 33501
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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Dear Jo C, I am currently dealing with a civil claim on

Resolved Question:

Dear Jo C,
I am currently dealing with a civil claim on behalf of my mother and would like some general advice. Here is what I believe has happened:
In 2013, my brother and mother were living together. They have always lived together. The house they lived in belonged to my brother. My mother suffers from depression and is illiterate. In late 2012 my brother told my mother that he wanted to transfer his property to her because she had always been insecure because of her depression. My mother initially refused but he kept forcing her to take the property and eventually she agreed. In February 2013, the property was transferred from my brother to my mother. A year passed and there were no problems. A year later, my mother and brother had a falling out over some personal family issues. This resulted in my mother leaving the property and coming to live with me. It was at this point that my brother told another family member that the reason he had transferred the property to my mother was because he was under investigation by HMRC and had to make sure there were no assets on his name. He did not tell my mother this at the time. When I ordered the property documents from the Land Registry it stated that in February 2013, my mother had purchased the property from my brother for £73000. When my mother found out about this she was shocked and had a panic attack. She never had £73000 and was on income related benefits. After checking my mother's bank statements, we found that my brother and his wife had transferred £73000 from their own accounts into my mother's account. This money was then used to purchase the property so the money basically circulated back to my brother. My brother and his wife were always in charge of my mother's financial affairs as she is illiterate. They had access to her bank accounts through online and telephone banking. My brother later stated that he had to make it look like he "sold" the property to my mother so HMRC could not touch it if he was prosecuted or further civil action was taken against him. My brother dealt with all the financial transactions associated with the "sale" of the property and everything was done through a solicitor. My brother stated that he was cleared by HMRC. My brother is now asking for the property back and has issued proceedings against my mother in the county court. My mother is defending the claim as she is stating that he gave the house to her as a gift at the time. Can you please give me some general advice on this case? My brother initially stated in his particulars of claim that the £73000 which came from him and his wife was a loan but may now change pleadings to say that my mother was holding the property for him on trust.
Thanks, ***** ***** forward to hearing from you.
Submitted: 2 years ago.
Category: Property Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I shall do my best to help you but I need some further information first.
What does your mother wish to achieve?
Clare
Customer: replied 2 years ago.

My mother wishes to defend the claim against her in the county court.

Expert:  Clare replied 2 years ago.
Hi
Your mother accepts that the money came form her son and that she has made no financial contribution to the property - is that correct?
Clare
Customer: replied 2 years ago.

Yes

Customer: replied 2 years ago.

The money came from my brother but also circulated back to my brother after the property was "sold" to my mother.

Expert:  Clare replied 2 years ago.
Hi
But your mother made no financial contribution to the property at all
The house was always your brother's before 2013 and your mother left it when they fell out?
Clare
Customer: replied 2 years ago.

Hi Clare,

My mother is arguing that he gave her the house as a gift in February 2013, there was never any suggestion that she would need to give him the property back. He has stated the reason for the "sale" was to hide his asset from HMRC. I have spoken to my brother's solicitor, and to be honest, I am not sure what the claim is for (money or property).

What do you think are the strengths and weaknesses of this case?

Thanks

Customer: replied 2 years ago.
Relist: Answer quality.
Expert:  Clare replied 2 years ago.
Hi
I have not yet given an answer as it is important to be sure that I understand the position before I comment
I certainly understand the complex nature of this (and the dubious legality of your brother's actions)
What I am not certain of is what has happened since your mother moved out.
Who currently lives there and on what basis
Clare
Customer: replied 2 years ago.

Hi Clare,

Apologies for the misunderstanding.

My mother left the property when they fell out and was supposed to move back in once their issues had bee resolved. However, since my mother left the property their relationship has deteriorated even further mainly because they would not let her back in. My mother has lived in that property for almost 20 years. At the moment, my brother, his wife and their 2 children are living in the property. They are legally classed as licencees (non rent payers). Thanks.

Expert:  Clare replied 2 years ago.
Hi
How and why did your brother purchase the property?
Clare
Customer: replied 2 years ago.

The property initially belonged to my mother. In 2008, she decided she wanted to give her 3 sons their early inheritance. She transferred the property on trust to her eldest son (the claimant) so the property could be divided into 3 equal shares. He gave us our shares and kept the house that my mother lived in.

Expert:  Clare replied 2 years ago.
Hi
Ah - that does potentially make a big difference.
How much did he give his siblings?
Clare
Customer: replied 2 years ago.

Hi Clare,

I think the value of the property was £135,000 at the time so each son got £45,000.

Expert:  Clare replied 2 years ago.
Hi
That does indeed change the position.
At the time she transferred the property did your mother expect to live with your brother for ever?
How much is the house worth now?
Clare
Customer: replied 2 years ago.

Yes, the idea in 2008 was that she would live with my brother for the rest of her life as she wanted to stay in that property. The value of the house is about the same. This started off as a personal family dispute but became a legal dispute when they would not let her back in the property. She had been living in that same property for almost 20 years. She is currently reviewing her legal position to see how she can get back into the property.

Expert:  Clare replied 2 years ago.
Hi
Your mother's strongest argument is the fact that when she gifted the property to her offspring and your brother purchased his siblings share there was a clear understanding that your mother should be able to live there for the rest of her life if she so wished, and your brother has not fulfilled this condition.
On that basis she can argue that the property should remain in her name so that she can return there - but that it would then revert to your brother when she is no longer able to live there
The "Sale and Purchase" in 2013 is something of a red herring as your brother will argue that it was entered into to protect your mother from his financial difficulties and there was clearly no intention to change the actual financial position between them
This is not to say it is not relevant - just that her original intention when she gifted the property to the three of you is a stronger argument
There may well be further information you need - please just ask
Clare
Customer: replied 2 years ago.

Hi Clare,

I just have a few basic final questions:

1) My brother initially stated that the £73,000 was a loan, his solicitor has now stated that he will amend pleadings to include a property claim. Are they allowed to completely change the particulars of the claim 10 weeks after issuing the claim?

2) Can I argue my mother's case on the following two grounds:

a) Part of the agreement was that she would stay in the property for the rest of her life when she transferred it to him in May 2008.

b) The circumstances surrounding the gift and "sale" of February 2013.

She is currently in the process of mediation and my brother's solicitor is trying to intimidate her with threats and costs of litigation if she does not transfer the property immediately.

Thanks

Expert:  Clare replied 2 years ago.
Hi
1. Yes pleadings can be amended during the process - although the permission of the judge will be needed
2. The first part is the strongest argument.
At mediation she should say that she wishes to return there to live and that she will agree to the property reverting to her son at the end of that period.
Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 33501
Experience: I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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