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Clare, Solicitor
Category: Property Law
Satisfied Customers: 34895
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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I bought my parents house 20 yrs ago. The title deeds are in

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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

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 1 year ago.
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

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 1 year 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.

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

Customer: replied 1 year 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.


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 1 year 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.

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 1 year ago.
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?

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

Customer: replied 1 year 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.

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 1 year 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.

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 1 year 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?

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 1 year 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?

That could work

Customer: replied 1 year ago.

You are most welcome

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