How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 33311
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
13262538
Type Your Property Law Question Here...
Clare is online now

I bought my parents house 20 yrs ago. The title deeds are in

Resolved Question:

I bought my parents house 20 yrs ago. The title deeds are in my name. There was a deed of trust drawn up protecting my parents tenancy. The deed of trust meant that on sale of the house 62% of the value would go to my parents. On their death the 62% would pass to me. My understanding was that this would protect 62% from capital gains tax. My father has died and my mother is now in a nursing home on palliative care. I have searched the house and can find no copy of the deed of trust. I have contacted the solicitor who drew it up but the file has been destroyed. The mortgage company and the land registry do not have a copy.
My questions are 1) am I correct the deed of trust protects me from capital gains tax on 62% of the profit on sale and 2) if q1 is correct what happens if I cannot find a copy of the deed of trust.
Many thanks
Submitted: 10 days ago.
Category: Property Law
Expert:  Clare replied 10 days ago.

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further information first.

I assume that you have not been living at the property?

Customer: replied 10 days ago.
Hi
No, I have another property that is my primary residence. Apart from a short spell I haven't lived at the property since I bought it.
Some further information is that my mother, although of sound mind, is very ill and cannot communicate I.e. She has lost the use of her arms and speech(she can get some words out but it is incredibly hard to understand unless in context with something we have said first).
I have a draft copy of the deed of trust when it was first drawn up but there has been a subsequent version that was amended when we remortgaged to change the name of the mortgage company.
I was under the impression the deed was kept either with the land registry or the mortgage company but on contacting them they have no knowledge of it. The solicitors who dealt with several re mortgages have documented references to the fact there is a deed of trust but no copies.Hope this helps
Dennis
Expert:  Clare replied 9 days ago.

Also just to check - your mother's care is funded - she does not have to fund it herself?

How much is the property worth?

Customer: replied 9 days ago.
The care is funded dependent on a 3 monthly review. It is unlikely she will recover enough to lose the funding but if she did the deed states we all have to be in agreement to sell the property so the council cannot force sale. If the deed cannot be found my parents signed away their interest in the property when I purchased it(a condition of the mortgage) so again the council cannot force sale.The property is worth about £200,000.
Expert:  Clare replied 9 days ago.

Is there any Restriction Registered on the title (even if there is not a copy of the deed)

Customer: replied 9 days ago.
On the land registry doc there is a section Propert Register which details the freehold and rights. There is reference to a deed in this section but this relates to a right of way.
The next section Proprietorship Register has one entry for my wife and myself having title absolute. There is then a charges register that has two entries both dated 22/12/2013 which was when we last remortgaged. One just states registered charge dated 8th Nov 2013. The other states proprietor TSB bank etc.
I can send you a copy of the doc if required.
Expert:  Clare replied 8 days ago.

OK

The Deed of Trust was not Registered in any way.

Do you have evidence as to when the draft was prepared - anything at all?

Customer: replied 8 days ago.
I have a copy of the original draft, written in about 1995. This was amended (% split added and rules on what happened to the property on the death of one of us) but I have a copy of the amendments in a seperate letter, which also states that my parents approved to the terms of the deed of trust and amendments. It was redrafted in 2002 when we remortgaged to remove a reference to the specific mortgage company and I have a letter from the solicitor who did the redraft detailing the main points but not an actual copy of the draft. I just cannot find a signed copy. I am still searching through my mothers paperwork(she appears to have kept every bank statement and utility bill since 2000 so it is a slow process). I was surprised that I do not have a copy, as we are quite diligent with paperwork and from memory I thought the deed remained either with the property title or the mortgage company which I thought explained why we didn't. I have contacted both the land registry and mortgage company and they have no copy.
Expert:  Clare replied 8 days ago.

That's good - you do have a range of date specific evidence.

To deal with your questions

1. Yes that amount is protected from CGT (provided you sell within 3 years of your mother moving out of course)

2.You have clear evidence of the existance of the Deed of Trust which you can use to support your contention that 62% belongs to your mother (and will be available to be used for her care)

I hope that this is of assistance - please ask if you need further details

Customer: replied 8 days ago.
Hi
Thanks for your reply, it is good news that I will be protected from CGT and there is enough evidence that the deed exists. The bit I'm not sure about is when you say the 62% will be available for her care. My understanding was the council couldn't force sale of the house for her care? Is this not correct?
Expert:  Clare replied 8 days ago.

If you do not sell the house in the next three years there is no CGT saving.

Customer: replied 8 days ago.
I have to sell within 3 years but if my mum is still in the home the council could ask for money towards her care? Unfortunately It is highly unlikely she will still be alive in a year let alone 3 so don't think this will be an issue. Thanks for your help.
Expert:  Clare replied 8 days ago.

I am sorry about your mother - but if you do not sell until after her death then the CGT exemption will not work.

Customer: replied 8 days ago.
But if I sell while she is alive 62% of the value of the house goes to my mother. As there is no will this would then be split between my siblings. So it looks like the deed is actually no protection against the CGT. My understanding was that as the 62% only became mine on my mothers death then I would not have to pay CGT on that amount as I did not gain control of that until my mothers death. Effectively it would be like an inheritance.
Expert:  Clare replied 7 days ago.

If you wait until your mother has died then the share passes into her Estate for division between you and your siblings in any event

Customer: replied 7 days ago.
No, as I said in the original question, the deed of trust states that on her death the 62% goes directly to me and cannot be left as part of a will. Does that make a difference?
Expert:  Clare replied 7 days ago.

Then we come round again.

If it is not sold until after she dies then the whole of the equity reverts to you and then the CGT will apply in full.

Customer: replied 7 days ago.
Hi, sorry, final word(s). when I was told the deed would protect me I thought they said that as long as I sold it within 18 months of my mums death I wouldn't need to pay as you don't pay CGT on the gains in the final 18 months. Could this apply in this situation?
Expert:  Clare replied 7 days ago.

That could work

Customer: replied 7 days ago.
Thanks
Expert:  Clare replied 7 days ago.

You are most welcome

Clare, Solicitor
Category: Property Law
Satisfied Customers: 33311
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

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Remus2004

    Remus2004

    Barrister

    Satisfied Customers:

    2427
    Over 5 years in practice.
< Last | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Remus2004's Avatar

    Remus2004

    Barrister

    Satisfied Customers:

    2427
    Over 5 years in practice.
  • http://ww2.justanswer.com/uploads/TG/TGraham12/2012-7-17_81212_bigstockBusinessHandshake508163.64x64.jpg Thomas's Avatar

    Thomas

    Solicitor

    Satisfied Customers:

    414
    UK solicitor holding an England and Wales practising Certificate.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    42
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law.
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    4708
    LL.B (Hons), Higher Prof. Dip. Law & Practice
  • http://ww2.justanswer.com/uploads/AS/Aston Lawyer/2013-10-8_19517_JAPROFILEPICTURE.64x64.jpg Aston Lawyer's Avatar

    Aston Lawyer

    Solicitor

    Satisfied Customers:

    1823
    LLB(HONS) 20 years of experience in dealing with Conveyancing and Property Law
  • http://ww2.justanswer.com/uploads/CH/chathamchamber/2011-4-24_191833_1.64x64.jpg chatham-chamber's Avatar

    chatham-chamber

    Solicitor

    Satisfied Customers:

    828
    LL.B, Pg.Dip, LL.M, M.B.A (Pending), Solicitor-Advocate. UK Practising Certificate issued by SRA., DIFC Courts Registered (Dubai)
  • http://ww2.justanswer.com/uploads/CL/clairep80/2013-8-25_191218_dreamstimexs267279822nd.64x64.jpg Clare's Avatar

    Clare

    Solicitor

    Satisfied Customers:

    241
    I have been a solicitor in High Street Practise since 1985 with a wide general experience.