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Joshua, Lawyer
Category: Property Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We are 3 children. Our parents sold their property to myself

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We are 3 children. Our parents sold their property to myself and my sister for £100,000 in year 2000 (through Lawyers and The Nationwide Bank) and because our brother did not want to be part of property ownership for one reason or the other he preferred cash.
My sister and I re-mortgaged the property and bought a holiday apartment in Cyprus in 2005.
After the death of our parents in year 2012 he tried to register an interest in the property that was rejected by us and he was put to strict proof. The matter was referred to the Property Tribunal and is to be heard soon because he filed his statement of case full of lies as matter of desperation claiming falsely that he spent a large amount of money on the property.He then told the Tribunal in his statement that it is further averred that the applicant’s claim to a beneficial interest in the property by virtue of a constructive trust, proprietary estoppel or otherwise should be heard together with his intended claim to the Estate of our parents under the Inheritance (Provision for Family and Dependants) Act 1975. Where do we stand in successfully defending our property?
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. May I ask if you purchased the property at market value or below market value in 2000 please? If below, what was the likely value of the property at that time?May I ask if probate has been obtained for either your father or mothers estate and if so the approximate date?
Customer: replied 2 years ago.

1-Below market. about £300,000

2-no probate as far as Iam concerned

Thank you. Have your parents estates been administered without probate or have they simply not been administered by anyone to date? You refer to a cash payment to your sibling. Do you know roughly how much he received and is there evidence of this or does he dispute anything a
Customer: replied 2 years ago.

Estates have not been administered.

Please read his statement filed at the Tribunal:

  1. The property was originally owned by our Father and Mother, the parents of the applicant and the respondents.

  2. In the year 2000, the said parents decided to retire and live abroad where they had previously built a house. They came to an agreement with the applicant and the respondents to transfer the property into the joint names of the applicant and the respondents for them to hold it in equal beneficial shares and then to re-mortgage the property, which was then mortgage free, in order to raise the sum of £100,000 for the benefit of the said parents.

  3. In the event the property was transferred into the joint names of the respondents alone as the applicant had a poor credit record and a history of unemployment and fluctuating income which was not acceptable to mortgages. The transfer was registered on 10 December 2001. The common intention of the parties was that the respondents would hold the property in trust for themselves and the applicant in equal beneficial shares. The sum of £100,000 was duly raised by re-mortgaging the property to Nationwide and those monies were paid to the said parents. No payment was made to the applicant.

  4. Subsequent to the transfer of the property into the joint names of the respondents, the applicant incurred considerable expenditure and time in respect of management, repairs and improvement to the Property in the belief that he had a one third beneficial interest therein. The following are examples of the applicant’s input into the property.

  1. The applicant advertised for lodgers, interviewed them, showed them around the property, drew up tenancy agreements and helped to collect the rent paid by the said lodgers, which was given to the second respondent in order to pay the mortgage repayments.

  2. The applicant carried out works of decoration and renovation to the property when required, employing workmen if necessary.

  3. In 2009 the roof was replaced and new roof beams installed. The applicant arranged for builders to do this work, calling on numerous friends and acquaintances in the building trade and from his church to provide quotes and engaging the builder who carried out the work.

  4. In 2010 our Father wanted the garage to be converted into a bedroom as he could not use the stairs due to disablement. The parents provided the funds for the necessary work to be carried out, which was organised and supervised by the applicant.

  5. In 2011, due to water leakage, the applicant had to finance and organised major work on the property which involved replacing the central heating system and boiler and refitting the downstairs shower and bathroom.

  6. In 2011, the applicant arranged and supervised the design and refurbishment of the kitchen, installed a new cooker and had a new fuse box lighting installed and general rewiring carried out.

  1. The applicant incurred expenditure over the years in excess of £30,000.00 in respect of labour and materials to carry out repairs and improvements referred to. He would not have incurred this expenditure and carried out the work referred to but for his belief that he had an equal beneficial interest in the property and the respondents knew of and encourage his belief.

  2. In view of foregoing it is averred that the respondents are bound by a constructive trust to hold the property upon trust for themselves and the applicant in equal shares. Further, or alternatively, the applicant is entitled to an additional beneficial interest proportionate to the time, effort and expenditure which he incurred and/or the increase in the value of the property by virtue of such expenditure and work. So far as may be necessary the applicant will rely upon the doctrine of proprietary estoppels.

  3. In 2005 the applicant and the respondents jointly agreed that the property should be re-mortgaged in order to provide funds to purchase a holiday apartment in Pathos, Cyprus. The applicant has visited the said property in Cyprus as the family representative to ensure that it was in a reasonable state and a lettable condition. A re-mortgage was obtained from the Bank of Ireland on 22 October 2008 to fund the purchase. The applicant arranged the holiday rental of the property in Cyprus and its continued maintenance.

  4. In the years between 2008 and 2012 the applicant spent long spells in the Property, looking after the said parents who were infirm and immobile. Our Mother developed Alzheimers and our Father required continuous care due to knee replacements and heart trouble. The applicant fed and cared for both of them in the property, arranging doctors’ appointment, washing, cooking and cleaning for them and attending to their needs. Our Father, on the last visit to the property in 2012 that he made with our Mother, sat down with the applicant and the respondents indicating that he wanted them to work together to look after the property and to safeguard the welfare of the second respondent who had learning difficulties.

  5. It is further averred that the applicant’s claim to a beneficial interest in the property by virtue of a constructive trust, proprietary estopped or otherwise should be heard together with his intended claim to the Estate of our parents under the Inheritance (Provision for Family and Dependants) Act 1975.

The applicant believes that the contents of this statement are true. I am duly authorised to sign this statement on behalf of the applicant.

Thank you. You refer to a cash payment being made by your parents to him as an alternative to an interest in the property. Do you know the amount of the payment made and can this be proved by bank records? Was there any evidence of payment?He claims to have spent lots of money on the property. From what you say this is untrue? Presumably he will have no evidence of the money he claims to have spent?Finally was anything put into writing regarding the agreement for the property? I note from the above that your parents continued to live in the property as late as 2012?
Customer: replied 2 years ago.

1- No proof of cash payment to him as we do not know that it would come this stage of legal dispute after their deaths.

2- Any payment made was between our parents and him and had nothing to do with us. As far as we are concerned it was sold to myself and my sister and registered in our names.

3- He has no proof of money spent other than invoices from friends showing cash payments.

4- Nothing at all was put in writing and further our parents did not live there up to 2012 but were residing abroad until they died in 2012 abroad.

Thank you. the starting point is that the transfer into your names amounts to evidence of a transfer and gift of the property and therefore it is up to your sibling to evidence a constructive trust in respect of any share of the property he claims to have by way of contributions to the property he claims to have made. If he cannot adduce evidence to support the financial contributions he claims to have made, then a court will not agree a constructive trust as the burden of proof is upon the person seeking to evidence a construtive trust to prove one exists not for another to disprove it.On the basis that he will not be able to adduce such evidence I cannot see that ths part of his claim can proceed forward.He also claims that the intention was that you would hold the property on trust for him and yourselves in equal shares. Again this would be for him to show. Even if he could adduce some evidence of this which based on what you say I cannot see that he can on the basis you can show that the property has been used entirely for your and your sisters benefit (e.g. you have lived there or taken rental income for the whole period you have owned it) based on your other siblings claims if true this would amount to a breach of trust on your part and he has failed to take action until now and therefore he would be out of time under the Limitation Act to bring a claim for breach of trust even if there were one which you deny as claims for breach of trust must be brought within 6 years of the date the right of action accrued under the Limitation Act.Accordingly in teh absence of any conclusive evidence that shows that he made financial contributions towards the property I cannot see that his claim has any partiuclarl merit in respect of his claims for constructive trust.As regards ***** ***** claim under the Inheritance Act this must be made within 6 months of the date of any grant of probate. on the basis that probate has not been obtained as you believe, such a claim is still in time but any claim under the inheritance act would not deal with the property as this was gifted out of your parents estate long before they passed away and therefore does not form part of their estate against which to potentially claim under the Inheritance Act.finally, I cannot see that the property tribunal has jurisdiction to deal with such a claim as the claim appears to amount to a combination of a claim for a declaration of constructive trust and/or a potential claim under the Inheritance Act. Such claims must be brought in the courts and not a property Tribunal under the Inheritance Act and Trusts of Land and Appointment of Trustees Act. accordingly, if he's brought a claim to the property tribunal, you may wish to consider asking the tribunal to strike the claim out on the basis the tribunal does not have the power to hear the claim. At the same time, you may consider advising your sibling the any further claim brought in the courts on the above grounds will be vigourously defended and he will be put to strict proof by you on the claims made reminding him of the penalties associated with perjury and making false statements suggesting he considers his position before bringing any further unsubstantiated claims.I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
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