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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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My 82 year old mothers partner has been imprisoned due to

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My 82 year old mothers partner has been imprisoned due to historic criminal offences against members of her family. They are both joint owners of her home, since 1987 she has been sent a notice that legal aid are charging him £10,000 for legal costs. they are putting a charge against the house. How does she respond to the letter as she is extremely worried? and secondly is it possible to extricate her from joint ownership? the house has a lifelong mortgage against it(2005). She was unaware of his behaviour and having been separated for some time now feels there was some coercion of her by him to agree to the mortgage - she did not need the money. There initial purchase of the house was financed in the major part from the sale of her previous home (she was a widow) with a small mortgage to finance the residual cost and to pay for window / door replacements. Are you able to give any advice please?

What is your mother actually want to happen? Does she want to sell the house or just get him off the property?

You say there is a lifetime mortgage. If the property was sold today, how much equity/cash would be released from it?

Customer: replied 1 year ago.
She would prefer to remove him from the joint ownership, he is serving a prison sentence of 18 years so all of the costs to manage and maintain the house are now down to her.
I would estimate the free cash after a sale today at approx £ 110,000.

Thank you.

The situation with regard to the joint ownership, even though she may have contributed the lion share of the deposit is that if there was no agreement to the contrary what would happen when the property was eventually sold, then the proceeds are split 50-50. There is case law to that effect which I must mention I do not agree with. This is of course assuming that there are no dependent children which, at 82 seems most likely.

Any mortgage that she pays when he is not living in the property would be taken into account in any final division of proceeds. Some lifetime mortgages require a payment some require no payment. I don’t know which this is.

He cannot remove him from the title unless he agrees either to go voluntarily or to be paid off. If he steadfastly refuses, the only alternative would be to sell the property.

If he is not living in the property, he is not liable for the mortgage or the bills but if there is a mortgage, and your mother stopped paying it, then he would be liable.

She cannot remove him from the property without selling it (unless he can sense as I have already said) regardless of what he has done or what heinous crimes he has committed.

Can I clarify any points arising from this?

Please rate the service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails.

Best wishes.


Customer: replied 1 year ago.
The lifelong mortgage is an equity release upon which they borrowed capital to be repaid upon end of life or selling the property, there are no payments prior to this occurring.
What about the question reference coercion in arranging this?
Is it possible to enforce a change to tenancy in common?
Would the legal aid charge £10,000 against him still be taken upon sale even if they have less than £20,000 left leaving my mother paying part of this charge?
You have not responded as to how she should respond to the legal aid request to place the charge on the property.
when she sales can she get a court order to enforce a sale with regard to him signing documents?
The court conditions are that there can be no contact by him with either my mother or the family.

Thank you.

It would be very difficult to prove coercion after 11 years. Even if there had been some coercion, after 11 years, if this were in front of a judge the judge is likely to say that your mother acquiesced. That’s not to say that you couldn’t threaten (better to solicitor to threaten) a court application although it’s not one that I would be taking to court with any hope of winning.

There is no need to enforce a change from joint tenants to tenants in common, your mother simply gives her partner a letter saying that she severs the joint tenancy of the property and then files form SEV at the land registry duly completed. Her partner cannot do anything about that. There is no fee from the land registry, it just happens.

£10,000 in respect of the legal aid can only be taken out of his half of the share of the house. They cannot touch your mother share.

Because the property is jointly owned, they can only place an equitable charge on the property and not a legal charge. Because it appears that he does owe this money, there is little, if any point in contesting any application they may make equitable charge over his share.

There is no need for him to have any contact with any of you but, you are concerned about it, get a solicitor to write to him regarding all the above and in that way, any correspondence will come to the solicitor and not the family.

Customer: replied 1 year ago.
Thank you. To clarify my earlier question as this is an immediate concern;
the letter my mother received this week was a copy of an interim charging order from the oxford county court , from a solicitor acting for the lord chancellor (legal aid agency) against her partner and stating that he has a beneficial interest in the jointly owned property, with an option for the judgement debtor or any other person to object to the continuation of the charge within 28 days, to be considered by the district judge no later than 15th nov 2016 to consider without hearing if the charge is made final or discharged. Land Registry details etc enclosed appear to be correct.the cover letter states ; please find enclosed by way of service upon you,
1) application for Charging Order together with official copies in support
2) Interim Charging Order dated 27th September 2016
they ask if mother would kindly acknowledge receipt of this letter.what are your recommendations as to our actions on this?Thanks, Malcolm

Yes, that’s what I expected. However it cannot be a legal charge it can only be an equitable charge because it’s not possible to separate the legal title and hence it only attaches to his share.

I assume that there is no mention of your mother in the order and it’s only sent to her for information.

Customer: replied 1 year ago.
I believe that it is just for her information & they just want an acknowledgement that she has received it, but it obviously caused her distress which we wish to alleviate as soon as possible and we are not happy to do that without advice. One thing that caused some distress to the family is that the solicitor has included the prison address of the partner, which the police & victim contact service did not want disclosed to the victims & our family as it is very distressing. were they at fault in this?
Thank you for your help, I was initially doubtful of your help in this matter but your subsequent advice is very helpful and reassuring.Malcolm

I can imagine that it causes her distress because she will be thinking that her house is at risk, it is not. I emphasise, once again, they cannot touch her share of the property.

I think you need an apology from the solicitor. I can’t see that you can get anything else because once it has been done it has been done. It would be worthwhile making a formal complaint to the senior partner but there’s nothing that you can actually get out of it.

I am glad to have helped. Before you leave the site, (the thread does remain open) could I trouble you to rate the service positive. That’s the system gets me paid. We can still exchange emails if anything crops up in the future. Best wishes.

F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Just a quick thank you for your responses yesterday they have set my mothers mind at rest.
Many thanksMalcolm

It was my pleasure to have helped. Best wishes.