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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 mother is in her early 80s and living in the family house

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My mother is in her early 80s and living in the family house that has 3 and a half acres of woodland. When she dies - hopefully long in the future! - we know we will have to sell the house, which was also our family home since 1971. We're looking at making the woodland area (which is ancient woodland) separate, as it contains trees where the ashes of my twin and our dad were buried, and obviously has emotional connections. We know the house and the rest of the land will have to be sold, but we want to get this part sorted so my mother can stop worrying. How do we go about it?! Many thanks for your advice. Vanessa
JA: Where is this? It matters because laws vary by location.
Customer: It's in Kent in the UK.
JA: What steps have been taken so far?
Customer: None, as we don't know where to start!
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I am one of 3 sisters, all who get on well and are close.

Good afternoon. I will assist with your question - be aware this is an email not chat service therefore i maybe delayed in replying.

so you and your sisters wish to keep this woodland in trust forever?

how does it impact on the house if at all?

Customer: replied 6 days ago.
The woodland can be easily fenced off, as you get to it at the end of one of the lawns and has an access to a bridlepath the other end. Yes, one of the options is to keep it in trust for the family. But we thought we would grant any future owner of the house access through to the gate on the bridlepath. (To be clear, the bridlepath is owned by Bromley Council and nothing to do with the property!) Has this helped?

This would normally be done when the property was sold and it would be a Transfer of Part where you would retain the woodland and sell-off the house.

However the land registry will not register a transfer of part just to split the land into 2 if both pieces of land are going to be owned by the same person.

 

There would however be no problem in transferring the woodland to, for example, children or children and mother.

 

When your mother eventually shuffles off the mortal coil, there is of course nothing to stop all the family members selling the property or indeed, prevent one of the family members wanting the property sold because it is not a case that the majority rule.

 

Can I clarify anything else for you?

 

I am happy to answer any specific points arising from this.

 

Please take a moment to look at the top right-hand corner of the page and rate my service by clicking one of the stars at the top of the screen.

 

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Thank you.

 

If you still need any points clarifying, I will still reply because the thread does not close.

 

Best wishes.

 

FES

 

F E Smith and 3 other Law Specialists are ready to help you
Customer: replied 6 days ago.
Thank you! I'm going to relay your advice to my sisters and possibly come back to you if there are further questions that need clarifying. In the meantime, thank you from a complete legal novice!

It is my pleasure to help you. Thank you for the positive rating. It is appreciated.

The thread does remain open and when you have spoken to everyone else, if anything else crops up, just post up and I will deal with it.

One small warning and that is that after the question has been open for about 5 days, I longer notification you are waiting so I may be delayed getting back to you.

Customer: replied 6 days ago.
Understood - thanks!

I am glad to help.

Customer: replied 5 days ago.
Hi, I've spoken with my sisters now and we want to clarify how we would go about getting the woodland transferred over in three of our names. I'm assuming we would have to go through a solicitor or can we just contact Land Registry? Many thanks for your help again!

There is no reason why you cannot DIY.

 

The process is not for the fainthearted although it’s not an uncommon question and therefore I have a standard cut-and-paste answer which is below: a solicitor would probably charge under GBP500 plus VAT plus the land registry fee:

 

To transfer property from 2 names to 1 name or from 1 name to 2 names or to simply sell a property is relatively straightforward but there are a lot of forms to fill in

 

The transfer deed for transfer of part is land registry form TP1

 

https://www.gov.uk/government/publications/registered-titles-part-transfer-tp1

 

and you also need AP1

 

 

https://www.gov.uk/government/publications/change-the-register-ap1

 

and ID1

https://www.gov.uk/government/publications/verify-identity-citizen-id1

for all the parties involved.

 

There needs to be one of the latter forms for each person involved. It needs a passport sized photograph certified by a solicitor as being a true likeness. This is not needed if solicitors are doing the job but the solicitors will want different ID, usually a passport or driving licence and 1 or 2 utility bills.

 

There is also the Land Registry fee based upon the value of the property which is here:

https://www.gov.uk/guidance/hm-land-registry-registration-services-fees

 

Use scale 1 fees.

 

If there is a mortgage on the property they will need to consent to the transfer and if it is going from 2 people to 1 person they will usually refuse to remove one and would want the mortgage repaid.

 

There may be stamp duty depending on the money changing hands or if no money changing hands, there would be stamp duty on the transfer if the mortgage being taken over or disposed of is over £250,000. Stamp duty is based upon 50% of the mortgage. If there is no mortgage and no money changing hands, there is no stamp duty.

 

If it is a second home/piece of property then the limit goes down to 40k and a higher rate of SDLT is payable

 

A solicitor would normally charge about £300 - £500 plus VAT plus the land registry for dealing with this if you don’t feel like doing it yourself. Any high street solicitor that does conveyancing deal with this. The process is very straightforward for a conveyancing solicitor but a bit of a nightmare for an individual with no experience of doing property transactions..

 

As one person is potentially being advantaged and/or one person is potentially being disadvantaged, it’s essential to take independent legal advice on the effect of this so that some stage in the future, neither party can complain that they were coerced into doing this.

 

 

Incidentally, the process is exactly the same as selling a property and buying a property although the parties are different and no money is changing hands.

 

In effect the current owner(s) sells the property and the new owner (s) buys the property albeit with no money changing hands. There is obviously no contract in that case but the transfer deed and the rest of the documentation is the same.

 

 

Please note that if this is being done to avoid the payment of care fees or the payment of inheritance tax, it will not necessarily do either

 

In case of care fees, if it was done to avoid the payment of care fees, the local authority can have the transfer set aside if they could convince the court that it was done to avoid the payment of care fees.

 

In the case of avoiding inheritance tax, it only escapes the seven year inheritance tax claim if whoever is transferring the property retains no interest in it.

 

The person who is the recipient of the property must have free rein to do with the property as they wish sell it or remortgage it or rent it out or whatever. If not, it’s a gift with reservation which is dealt with as though it isn’t a gift at all.

 

There is no timescale for avoiding care fees and the gift with reservation issue also applies.

 

Going back to the documentation, there may need to be rights and reservations for services, rights-of-way, access for one piece of land over the other and that needs to be considered and there needs to be a Ordnance Survey compliant plan in support of all of that plus to identify the land being transferred although you may find that the existing land registry plan would be sufficient suitably marked up.