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Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 33946
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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I have been in a long running legal dispute with my Local

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I have been in a long running legal dispute with my Local Authority. When my father went into residential care in early 2008 he owned half of the house he was living while I owned the other half. After the means assessment the LA decided they would disregard my father's share but while he was in there he transferred his half to me and they are claiming back from me all of the money they paid out in support of his care.
I clamed to have a proprietary estoppel over his half but the judge ruled I did not have as there was no evidence that he ever intended his share to become mine anytime before his death. He says that the test to be applied, which is set out at paragraph 18 of the judgement in Yeoman's Row Management v Cobbe, has been applied correctly.
I simply do not agree with that as my expectation was still 'a certain interest in land'. This appears to be clear from reading the remainder of that paragraph.
Please advise
Submitted: 1 year ago.
Category: Property Law
Expert:  Clare replied 1 year ago.
HiThank you for your questionMy name is ***** ***** do my best to help you but I need some further information firstWhat was the basis of your claim for "proprietary estoppel"?
Customer: replied 1 year ago.
When my mother died in 2003 I inherited her share in the matrimonial home. My father continued to live there until early 2008 when he was admitted to hospital and then went into residential care. During the time he was at home I spent considerable sums on repairs to the property for which I was paid nothing. This part of the argument was a accepted by the trial judge.
Expert:  Clare replied 1 year ago.
Were you given credit for those sums?
Customer: replied 1 year ago.
If you mean do I have IOU's from my father the answer is no
Expert:  Clare replied 1 year ago.
Hi
I meant by the Judge
Clare
Customer: replied 1 year ago.
This what he has said in his judgement:
Mr Daniels alleges that he had such an expectation because his father had told him on an occasion he did not specify that 'his share in the property would become mine'. However this has to be considered in the context that Mr Daniels knew that his father had bequeathed his interest to him. He alleges that he acted to his detriment by spending money over the years on the property. I am satisfied that he did so, not because he was relying on any assertion that he would have the interest before his father died but because by carrying out the repairs he was first protecting his own half share in the equity and his father's half share which he expected to acquire after his father died and second, it was necessary in order to secure a home for both of them which was in a proper state of repair. As he wrote in his in his statement of 15th December 2014, 'this was work which was vital if my father was to continue living there'.
I am satisfied that the Mr Daniels did not have any expectation that he would ontain his father's interest before his death and he did not act on such an assurance contrary to his interest.
Expert:  Clare replied 1 year ago.
Hi
When was the Order made?
Clare
Customer: replied 1 year ago.
Tuesday
Customer: replied 1 year ago.
The judge maintains that he has applied the test correctly. The test is set out at paragraph 18 of the judgement in Yeomans Rowe Management v Cobbe. I believe he has applied the test incorrectly
Expert:  Clare replied 1 year ago.
Hi
Have you asked permission to appeal?
Clare
Customer: replied 1 year ago.
I asked the judge when he handed down judgement but he refused. He said I would need to go to the court of appeal. The reason he gave for refusal was that the test had been correctly applied but I do not agree that it has
Customer: replied 1 year ago.
Had I registered the debt under the Land Charges Act would he have been able to reach the same conclusion?
Expert:  Clare replied 1 year ago.
Your only option is to apply for leave to appeal.I have to say that I do not agree with your interpretation of the paragraph and how it relates to your position.The issue was not whether or not there was a "certain interest in land" it was the nature of that interest and how it related to the work that you did.Your next step is to apply for permission to appealThe rules are set out herehttps://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52You need to submit the appeal at the same time as seeking leave - the two are interconnectedPlease ask if you need further detailsClare
Customer: replied 1 year ago.
But the judge has stated that he found there was no expectation because my father had not indicated that he intended his share to be mine at any time before he died. Clearly, had the debt been registered under the Land Charges Act that would have been a clear indication
Expert:  Clare replied 1 year ago.
But then it could not be proprietary estoppel
Customer: replied 1 year ago.
But it would nonetheless have been the required indication
Expert:  Clare replied 1 year ago.
The two are incompatible - had it been a valid debt it could have been enforced in a different way
Customer: replied 1 year ago.
In what way could it been enforced if his half share was all he had to his name?
Expert:  Clare replied 1 year ago.
It would have been a debt which would stand in line with the other debts - and paid from whatever assets there are
Customer: replied 1 year ago.
He was my father. He would have wanted my debt to proprietary as would any parent
Customer: replied 1 year ago.
an you tell me how I go about asking for a stay. The appellant's notice says I can only apply for a stay if I am making another application
Expert:  Clare replied 1 year ago.
I am sorry but the fact that he was your father in fact makes it LESS likely that the debt would be enforceable.If you want a stay then you will have to file an appeal
Customer: replied 1 year ago.
But the appellant's notice states that I can only ask for a stay if I am making another application
Customer: replied 1 year ago.
Or maybe I have misunderstood it
Customer: replied 1 year ago.
Is that intended to mean that applying for a stay is the additional application?
Expert:  Clare replied 1 year ago.
Yes when you appeal you can also apply for a Stay whilst the appeal is consideredPlease understand however that i have doubts about the grounds you believe you have!
Customer: replied 1 year ago.
The situation is this. Applying the test as set out in paragraph 18 of Yeoman's Row the judge has ruled that there was no expectation as there was no assertion by my father, presumably when I carried out the work, that his interest should become mine any time before he died.
This is in fact wrong. I was always at liberty to transfer his interest into my name but was effectively prohibited by a potential liability to Inheritance Tax. This was the only impediment to me transferring his interest to me. Of course as soon as he entered residential care and it became clear that he would not be returning home that impediment was removed and I was free to do as I pleased and it was just a short time afterwards that I carried out the transfer.
Expert:  Clare replied 1 year ago.
What evidence do you have that this is what your father had said
Customer: replied 1 year ago.
My sister would confirm that to be the case
Expert:  Clare replied 1 year ago.
That would not be sufficient I am afraid
Customer: replied 1 year ago.
What would
Customer: replied 1 year ago.
What would be sufficient?
Customer: replied 1 year ago.
I disagree. In an action for a transfer at an undervalue the onus of proof is on the victim. Therefore if I raise the issue of Inheritance Tax as a defence it would surely be for them to prove otherwise rather than me to prove what was
Expert:  Clare replied 1 year ago.
I am sorry - you are free to appeal - indeed if you wish to challenge this then you MUST do soHowever your approach is simply not likely to be convincing.You owned half of the house your father owned the other half.Accordingly work needed to be done in any event.If you had been claiming half of the costs then you might have an argument.However once your father had moved into nursing care then his share of the assets were committed to his care - less any essential costs
Customer: replied 1 year ago.
I am afraid you have lost the plot entirely. Because the Inheritance Tax issue the question of an assertion wouldn't have arisen until he had entered the home.
Expert:  Clare replied 1 year ago.
HiI am sorry that you are not happy with my servicePlease be aware that a negative rating does not trigger a refund.I am afraid that your argument on Inheritance Tax is not valid - I assume that you are referring to the "retained benefit" argument.I fail to see how it is relevant given that your father did not live for seven years after he moved into the homeHowever since at that point the financial liability for his continuing care had been triggered that is an irrelevant point in any event.The fact that they had not forced the sale of your father's share of the property (in fact they could not do so) did not mean that he was free to give it to you
Customer: replied 1 year ago.
It is relevant because after he moved into the home the threshold for incurring Inheritance Tax was raised so that his share was no longer liable to any Inheritance Tax, that is why none was paid
Expert:  Clare replied 1 year ago.
But it has no relevance to the issue before the Court
Customer: replied 1 year ago.
Of course it's relevant because so long as there was a potential liability to Inheritance Tax the question of an assertion would never have arisen. Why should I want to carry out a transfer and pay thousands in tax when I could afford to wait and pay nothing
Expert:  Clare replied 1 year ago.
I am sorry but no it was not relevant.You and your father jointly owned the property following the death of your mother.Unless you paid for the property - in which case my apologies for the misunderstanding - at the time that the Local Authority made their assessment even if the Transfer to you had already been completed it would have been disregarded for the assessment purposes and it would have been assumed that your father still had an interest in half the property.Since the Transfer had NOT taken place then once the assessment had taken place that was the end of the matter in terms of your father's ability to give his assets away.
Customer: replied 1 year ago.
That is not what the judge has ruled and the appeal must be based on his findings. I really feel that this conversation has gone as far as it can and I must take what I want from it and proceed accordingly. Thank you for your input
Expert:  Clare replied 1 year ago.
The appeal must be based on his findings yes - and you have one interpretation of the way that the relevant Case law reads - The judge has another.However you then took your arguments down what was/is in effect an unrelated pathway and this IS relevant to the issue of the appeal.Your appeal must be focused on the actual issueI do actually understand the point you were making about Inheritance Tax - and I appreciate that it would have been part of the wider arguments and explanations that you were making BUT it leads to a diversion from what the arguments most likely were. (and of course not having been there I am to an extent guessing)Your case was (I believe) that in fact the whole of the property was always yours - it was just financially prudent not to deal with the transfer until there was no risk of IHT liabilityYou behaved towards the property on the basis that it was yours - hence the Proprietary estoppel point.To make that argument stand you would have to show that there was a reason - other than generosity - why the property should have been yoursIf it was only generosity then that expectation should have ended when he went into care.That is the underlying point you do need to find a way of arguing against - even if it is not on the face of it part of the judgement
Customer: replied 1 year ago.
The reason the property should have been mine was because my father wanted it to be mine. He always insisted that he would remain at home for the rest of his days and I accepted that but as a result of chest infection and resultant hallucinations he took an overdose of sleeping tablets and was admitted to hospital and after assessment he never returned home. One special point here is that the council misrepresented to me as to his true condition and that he could have been admitted as a temporary resident and this is something I never knew until a short time before the trial
Expert:  Clare replied 1 year ago.
Your father's understandable wish that the property should be yours is not sufficient - most parents want the same - you have to find some way of making it more than that
Customer: replied 1 year ago.
Do you mean when he entered the home or when I carried out the work?
Expert:  Clare replied 1 year ago.
Interesting point which may be where your argument should focusIf the work predated the move out then your argument is that he knew you were spending money and that was on the understanding that you alone should benefit.If the work post dated it then frankly you have an almost insurmountable problem
Customer: replied 1 year ago.
The work pre-dated the move out
Expert:  Clare replied 1 year ago.
Excellent news - it means there is still a chance (although you know I have my doubts)
Customer: replied 1 year ago.
But the judge is saying that the work was done on the understanding that the property would be mine after he died and not before.
Expert:  Clare replied 1 year ago.
OKSo the judge is saying that you would have done it anyway?
Customer: replied 1 year ago.
The judge is saying that I did it in the expectation that the whole of the property would become mine after my father died and not before
Expert:  Clare replied 1 year ago.
Ahhh - so what he is saying is that you did not do it because the property was already yours
Customer: replied 1 year ago.
He is saying that I did it in the expectation that my father's share would become mine after he died and not before. If I continue listening to you I'll be out of time to enter an appeal!
Expert:  Clare replied 1 year ago.
Sorry - what we are talking about now is more about approach rather than fact.YOU HAVE to file an appeal - or rather file an applictaion for permission to appeal with the appeal attached.There is no other way forward.You cannot introduce new evidence (like your sister) or change your evidence on what was agreed - but you do need to think about the reasons why the court took the approach that it didand align your existing evidence to match itEssentially the Judge is saying that yes you did the work because you knew the house would one day be all yours - but you did not do so to your detriment and because you had been PROMISED that it would one day be yours.You had every reason to correctly expect that it would be yours as you knew your loving father wanted to give it to you - you were not doing the work free on the promise that it would be
Customer: replied 1 year ago.
Okay, on that we are agreed. I must now proceed with the application. Thank you
Expert:  Clare replied 1 year ago.
It is the lack of promise that sank you I am afraid - so work around it carefully and good luck
Customer: replied 1 year ago.
Thank You. I will
Expert:  Clare replied 1 year ago.
The negative rating simply means I get no payment for the time spent - the site keeps it
Clare, Solicitor
Category: Property Law
Satisfied Customers: 33946
Experience: I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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