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Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 33820
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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hi Claire, the power of attorney and the Declaration of

Customer Question

hi Claire,
the power of attorney and the Declaration of Trust and Co-ownership Agreement are just temporary mesures while we wait for the formal assignment of the beneficial share to me. I understand this needs to be done either in London of by sending him the formal paper by fedex and him signing them in Colombia.
Will they be enough (at the moment we are still married and do not intend to divorce) for me to get on with the management of the house (remorgage or eventual sale) while wating for the assigment of shares? Will they have power for these if they are just an agreement between us (signed with two witnesses). Otherwise I will do only the Declaration of Trust and Co-ownership Agreement now (to clarify who has paid what) and we will organise for him to do a power of attorney to his nice who leave in London.
Thanks for clarifying,
best
Enrica
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.

I would like claire, who I have been corresponding so far to answer this question, which is a follow up on what we have been discussing so far. otherwise I have to start again. It as already happened once (i had intially started with a different solicitor and then claire did the follow up), and it is a real waste of everyone's time as the new sollicitors need to have all the infomation again, while I only need to clarify Calire's last points. Also the question is quite urgent, as I am abroad and travelling in the next few days, so I would really appriciate if you could pass this on asap, many thanks enrica

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
Customer: replied 2 years ago.

I don't understand isn't Clare available? In her last reponse she said:

If you need more help, then do please use the reply tab to continue our conversation.

And I have replied in:

Ask me (Clare) a new question.

Many thanks

Enrica

Expert:  Clare replied 2 years ago.
Hi
My apologies for the delay
I did a very long reply which was lost in the ether...
So here goes again.
I remain uncertain what your actual plans are so I am trying to cover a number of options.
With regard to the shares in which you hold the property as i said a Declaration Of Trust has no force in the event of Divorce - however if you wish to have a clear record of the agreement between you then you have two options.
You can simply Sever the Joint tenancy - details here
http://www.landregistryservices.com/samples/england_and_wales/eng_notice_of_severance.pdf
stating that the shares are 100% for you and 0% for him
Alternatively you and your husband can sign a Declaration of Trust stating that you hold the property on trust for you alone
A template is here
http://www.lawontheweb.co.uk/~/media//LOTW/Files/Legal_Docs/pdfs/Declaration%20of%20Trust%20in%20Relation%20to%20Land%20Tenants%20in%20Common
although it will need tweaking (and you may have to sign up to the site - there is no cost)
Either option will show what the agreement was and will be effective other than within Divorce proceedings.
However if you register this at the Land Registry then from then on you will either need your husband to sign any transfer - or he will have to give someone else Power of Attorney -
The form for that is set out here
http://www.lawontheweb.co.uk/~/media//LOTW/Files/Legal_Docs/pdfs/General%20Power%20of%20Attorney
It would be sensible to limit the Power to cover matters relating to the property address alone
http://www.lawdepot.co.uk/contracts/power-of-attorney-form/?loc=GB
However it is unlikely that a mortgage company will accept a Power if you and your husband wish to remortgage - if what it is to be done is the sale of the property then it would be more sensible to get him to sign a TR1 in advance
http://www.landregistry.gov.uk/_media/downloads/forms/TR1.pdf
Please let me know if you need further details
Clare
Customer: replied 2 years ago.

dear clare,

thanks a lot for the range of options you sent. We will be studying them and look at the implication of each, and I might get back to you when I am back in London next week to continue our conversation.

Meanwhile just a few quick clarifications:

1. We have been looking at the TR1 and there was a point which was unclear:

The transferor transfers with

full title guarantee

limited title guarantee

what is the difference?

2. You said a Declaration Of Trust has no force in the event of Divorce. Do you mean if my husband would like to disregard it? Would we be able to divorce with him recognizing that I have been paying all the mortgage of this particular property and therefore have the right to the full benefit from it?

I am a bit confused about this. If I have been paying the entire mortgage of our joint property (and he states so in writing) why if we divorce this should not be recognized as a fact?

Thanks for clarifying,

Best

enrica

many thanks.

Expert:  Clare replied 2 years ago.
Hi
The difference is not relevant in your case - he will transfer with Full Title Guarantee.
It would limited if he was selling as the Executor of someone else and may not be aware of all restrictions regarding the property.
In the event of a Divorce if there is a dispute about how your assets are to be divided then the court can simply ignore the Declaration of Trust of they consider it fair to do so/
I am not saying that they would - just that they can
Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 33820
Experience: I have been a solicitor in High Street Practise since 1985 with a wide general experience.
Clare and other Property Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi Clare,


 


sorry to take so long to get back to you, but since I came back to london I have been very busy.


 


I have now look more in details at your different suggestion and would like to advice me on a few matters.


 


1. The TR1 is a form to transfer the whole of the registered title, but the title is on both our names, we are bot Registered Owner(s). Can we still use this form and how should we clarify that he's transferring his co-title to the co-owner?


 


2. What are the fiscal implication of the transfer? Will I have to pay a tax for part transferred to me.



3. Do we have to inform the mortgage of this change in the title deed.



4. We have a joint mortgage on the property. Can we keep it in both name, if Mauricio transfers his art of the ownership to myself.



many thanks for clarifying


Enrica

Expert:  Clare replied 2 years ago.
Hi
1. It is indeed possible - you are both transferring the property into your sole name
2. No
3 and 4 - you will need the permission and involvement of the mortgage company - otherwise you can simply opt for the Declaration of trust which does not
Clare
Customer: replied 2 years ago.

If we opt for the Declaration of trust, will I be able to sell/re-mortgage on my own (with a power of attorney). from your previous answer it wasn't clear i could do this. Could you clarify?


 


Eventually, how do we go about asking the permission of the mortgage lender? Can I write to them to inform them of our decision? Could they object? Could this put our mortgage (which is a very good interest-only life tracker) at risk? Will we need to remortgage?


 


thanks


Enrica

Expert:  Clare replied 2 years ago.
Hi
You need to contact the mortgage company and ask them to consider agreeing a Transfer of Equity.
There will be a form to fill in and a fee to pay
If there is no Transfer then your husband will need to give someone else Power of Attorney if you wish to sell the property without him
Clare
Customer: replied 2 years ago.

Can they refuse or reconsider the term of our mortgage? Is there a risk in approaching them with this idea? We are very happy with the kind of mortgage we have (this is a life tracker then normally will continue till the end of the loan) and will not like to change it.


 


What would the fee be for? Any idea of the amount? is there a sample form one could look at?


 


many thanks for your patience.

Expert:  Clare replied 2 years ago.
Hi
Yes they can refuse - but there is no risk in asking.
The fee is for them considering the matter and they all have their own charges - usually £100 or so
Clare
Customer: replied 2 years ago.

do we need to see the mortgage company together or can I go on my own? As one of the problem is that my husband is not living in England at present....

Expert:  Clare replied 2 years ago.
Hi
You do it in writing - there is no need to do anything face to face at all
Clare

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