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Stuart J
Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 24601
Experience:  Senior Partner at Berkson Wallace
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My father died in 2015 I have been informed that he signed a

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My father died in 2015 I have been informed that he signed a mortgage contract in 1997 He split up from the lady in 98 and she know wants me to sign over my dad's half with no proof that he didn't pay towards a 24000 pounds deposit and is with holding a 6000 isa in my dad's name if I sign it over
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: Onlt the dank the land deeds I can't access his account as they onlt go back 7 years I can't seem to get hold of the main bank despite serval attempts
JA: Where is the land located?
Customer: The house is in pagham bognor regis Sussex
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: Only that my dad died suddenly while sorting out his money I don't have probate or letters of administration because the amount was under 30000 and the bank where wonderful at the time

Hello. Thank you for the question. It is my pleasure to assist your with this today.

Please bear with me and I will be online and off-line from time to time and therefore, may be delayed getting back to you. You will receive an email when I reply.

Were they married?

and is she still in the property?

and why has this taken you till now to try to sort this?

Customer: replied 9 days ago.
They where not married
The lady still lives at the adress
I did not know about the property until 2 weeks ago, my sas litreally dropped dead before he could finish putting together his assets
My dad also had a learning disability which didn't help
Customer: replied 9 days ago.
I don't have 44 pounds until tomorrow and the other solicitor has not acknowledged my emails which I sent within the 14 days they requested that day is today
Customer: replied 9 days ago.
I can send you the letters that my brother received while I was out of the country

You have probably seen a pop-up offering you the chance of a telephone call at an extra cost.  It is up to you whether you have a telephone call or not but do bear in mind that a 15-30 minute telephone call covers an awful lot of ground and you can get an awful lot of information in that time.  So you can ignore it or go ahead or go ahead later.  It’s your choice.

Meanwhile, we can carry on on here.

All we can speak tomorrow if you wish.

Either your father granted the mortgage against the property or he didn’t and if he did grant a mortgage then it will be shown on the land registry title deeds.

You can get the title deed and the plan quickly and easily by using this link:!ut/p/b1/04_SjzS0tDQwMTIxMjLXj9CPykssy0xPLMnMz0vMAfGjzOKNjSxMDA1NjDwsjM3MDTxN3dyNDUNMjQ1MjPWDU_P0c6McFQH3SLFU/

and you will have to pay 3 pounds for the title deed and 3 pounds for the plan.

You will then have them in minutes if not seconds.

Unfortunately the property is not registered at the land registry than it needs a search at the Land Charges Department of the Land Registry in Plymouth.

The letters are probably going to be useful.

Stuart J and other Property Law Specialists are ready to help you
Customer: replied 9 days ago.
I downloaded the deeds he is on them and the bank who granted the mortgage is the royal bank of scotland the other party said that they had bad credit and my dad agreed to getting the mortgage because he had good credit they have also daid my dad did not put toward the deposit but I can't prove or disprove as his records only go back 7 years after he died
Customer: replied 9 days ago.
Sorry before he died 6000 was put in an isa as there was a default on the mortgage and they are withholding it to make me sign
Customer: replied 9 days ago.
I will pay for phone call

Can I see the papers and the land registry title please?

You can get the title deed and the plan quickly and easily by using this link:!ut/p/b1/04_SjzS0tDQwMTIxMjLXj9CPykssy0xPLMnMz0vMAfGjzOKNjSxMDA1NjDwsjM3MDTxN3dyNDUNMjQ1MjPWDU_P0c6McFQH3SLFU/

and you will have to pay 3 pounds for the title deed and 3 pounds for the plan.

You will then have them in minutes if not seconds.

You can attach using the up arrow or the paperclip or the link at the end of the reply box.  How you do it depends what page you are on.

When I have the documents, I will then call.

Customer: replied 9 days ago.
File attached (1VZTT3S)
Customer: replied 9 days ago.
File attached (7443113)
Customer: replied 9 days ago.
Sorry about the quality the deeds are on my laptop and I'm taking to you on my phone

Thank you for the letter.  As you appreciate, the solicitors only know what their client, Christine, has told them.

The property is in joint names or but she is saying that she paid all the money towards it, GBP26,500 and that your father paid nothing as the relationship ended the following year.

If what they are saying is true, then what they are saying is correct, except to say that whilst your father may have put no money into the property either by way of mortgage payments or deposit, the fact remains that he was at risk of the mortgage if Christine did not pay it.  That risk has a value

So assuming that it is agreed that she paid all the money, it’s just a case of deciding how much the value is of your father having remained on the mortgage all those years even though it was paid by her.  It’s probably only worth a couple of thousand pounds but that’s going to be cheaper than the argument over it which if it went to court, could easily be 10 grand or 20 grand.  What is more important however is whether you accept that she paid all the deposit, whether you have any proof that your father paid anything, and whether she has any proof that she paid it.  That would be the general gist of my reply to them.

If the property is in joint names as tenants in common than probate is going to be needed to transfer the property under the terms of your late father’s will or under the terms of their claim.

If it’s joint tenants, it goes automatically to Christine.

What happens to the house depends whether it is held at the land registry as Joint Tenants or Tenants in Common.

I will explain the difference between Joint Tenants and Tenants in Common.

You need the title deed (you don’t need the plan) to the property.

You can get the title deed and the plan quickly and easily by using this link:!ut/p/b1/04_SjzS0tDQwMTIxMjLXj9CPykssy0xPLMnMz0vMAfGjzOKNjSxMDA1NjDwsjM3MDTxN3dyNDUNMjQ1MjPWDU_P0c6McFQH3SLFU/

and you will have to pay 3 pounds for the title deed and 3 pounds for the plan.

You will then have them in minutes if not seconds.

You will see that it has three sections

A             Property Register which describes the property

B             the Proprietorship Register which says who owns it

C             the Charges Register which gives details of mortgages, leases, restrictive covenants and anything else which affects the property.
Have a look in B Proprietorship Register

You are looking for a restriction along the lines of “No disposition by a sole proprietor et cetera et cetera”

That restriction may or may not be in there.  I know it’s rather odd wording.

If the restriction is NOT in there than the property is held as Joint Tenants which means that when one co-owner dies, the deceased persons share passes automatically to the other under the right of survivorship.

Even if there is a will leaving the deceased persons share to someone else, it’s not effective, and the deceased persons share still passes to the survivor, regardless of what the will says.

If the restriction IS in the title deed then the property is held as Tenants in Common which means that when one co-owner dies, the deceased persons share passes in accordance with the terms of their will or, if there is no will, under the Rules of Intestacy.

Thank you for letting me assist you with your legal question.  I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards

We can speak on the telephone.  Let me know when you are free please.

Customer: replied 9 days ago.
It's says no disposition by a sole proprietor of the land what does that mean
Customer: replied 9 days ago.
what do I do now
Customer: replied 9 days ago.
Can I go to the RBS and claim my dad's USA for instance I happy to pay for a phone call
Customer: replied 9 days ago.
Isa I mean sorry I'm feeling very upset by all of this
Customer: replied 9 days ago.
I'm free now for a phone consultation

I said I would confirm what we spoke about.  This is the case law which says that regardless of what money each put in it would be split 50-50.

It doesn’t matter what each person puts in by way of deposit and what each person puts in over the period of ownership, it is split 50-50.  It does not matter that one of them pays all the mortgage and puts all the deposit in and the other one sits by and does nothing but drink tea, it is split 50-50.

UNLESS there is an agreement to the contrary.  Usually a trust deed.

The courts have decided that if a couple are buying a property together they would have an agreement if they were putting different amounts of money in and wanted money out in proportion.  They would safeguard their “asset” by putting it in writing.

Relevant case law is Kernott v Jones.

The case does go on to say that if the couple were living in the property and one party moves out, then any contributions to the capital or fabric or improvements of the property, after that person moved out but which were made by the one remaining, will be taken into account with the final division of assets from a sale of the property.  That actually happened in Jones because the property was sold years later and Jones I done a whole load of work to the property which increased that person share.

This it seems that the decision is unfair but for now we are stuck with it.

The case law goes on to say is that any contributions to capital (not interest) and any maintenance or payment towards the property other than the mortgage, after a couple split up will be taken into account in the division of the assets.  The reason it all isn’t taken into account is that if  you have the benefit of living in the property then you have the burden of paying the mortgage.

Not relative to the case law but if either party wants the property sold, then the reluctant non-sale wishing party can be taken to court for an order for sale under the Trusts of Land Appointment of Trustees Act s14 and they would usually get the order against the reluctant seller and get caught and solicitors costs also awarded against the reluctant seller.  If anyone ever threatens to apply to court for an order for sale, my advice to the other party is to get the estate agents sign up straightaway.

Meanwhile, a person is not responsible for the mortgage or the bills of a house that they do not live in although they remain liable to the lender if the other co-owner stays in the property but doesn’t pay.

I also mentioned Part 36 offers.

I would be inclined to make a part 36 offer.

Let me explain part 36 offer.

It relates to Civil Procedure Rules part 36.

A part 36 offer has to be in the particular format and even solicitors were getting wrong so the government kindly produced this totally compliant form:

The effect of a 36 offer is that if a Claimant refuses what is in the offer and proceeds blindly to court and fails to BEAT the offer, then the Claimant pays all the legal costs from the date of the offer including the defendants costs of the trial and of course their own costs.  Bearing in mind that the big costs are at trial a Part 36 offer is a good incentive to settle.

The form would need to go with your letter which I’m going to give you my suggested wording shortly.  Please make sure that what I’m saying is correct.

Customer: replied 9 days ago.
Just a quick one I don't have probate because the amounts where. Will I need to address that

I write further to your 2 letters of 31 August 2021 which I previously acknowledged.

The contents are noted and I am now in a position to reply in detail and having taken outline legal advice.

I am advised that the relevant case law here is Kernott v Jones which you will no doubt be familiar with.

Therefore if the property had been sold in 1997, when my father left, the proceeds would have been split 50-50 regardless of what my father or your client put into the property.

Notwithstanding, your client is put to strict proof of the contribution you allege that she made.  Please provide this by return.  She would no doubt have copious records of such a substantial financial transaction.

Notwithstanding your clients alleged poor credit history, from the figures you provide, she was putting down almost 50% and even with poor credit history she would have been able to obtain the mortgage and therefore your client’s version of events is not accepted as being correct.

Based upon the case law, if the property had been sold therefore in 1997 when my father left the property he would have received monies in the region of GBP13,500.  Allowing for inflation, using the Bank of England calculator that equates, 2020 (the calculator does not go any further) to GBP25,126.99.

The ISA was divided 50-50 between your client and my late father so that doesn’t really come into the equation.

So I am prepared to accept the sum of GBP25,000 plus the 6000 in the ISA and I enclose Part 36 offer to that effect.

You will no doubt advise your client with regard to the costs risk of litigation which is likely to be far more than the amount in issue.

As my father doesn’t have any other assets of note, and only this would require grant of probate, I understand that the matter could be dealt with by the appointment of another trustee and I am quite willing for you to do that based upon an undertaking from you to pay monies in accordance with the attached Offer.

I look forward hearing from you

yours faithfully

Customer: replied 8 days ago.
Stuart J I have discovered disturbing news, my father has multiple accounts with the Halifax including stocks and shares as well as that isa that I am unable to access due to the other solicitor putting a death claim in I'm effectively locked out if myself and my brothers inheritance

I would need to know details of exactly what the other solicitors have done please.

Customer: replied 7 days ago.
I spoke to you yesterday about my late father Barry Williams, today I went to the bank bacause I found out he has other accounts with the same bank as the mortgage and I cannot access them because the other solicitor has registered my father's death so I'm not allowed to see what accounts he has, the other solicitor for the lady failed to mention that
Customer: replied 7 days ago.
He appently presented the death certificate and had the whole of dad's accounts frozen I said I was the next of kin and did not give permission for him to do this they weren't helpful they just said its been done but they don't know how if I'm next of kin
Customer: replied 7 days ago.
This appently was done just before they contacted my brother in August

I’m not certain why this has become a problem now bearing in mind that your father died in 2015.  Obviously it’s a completely different issue, the banks, as opposed to your original question which was about the house.

I would need to know who the executors of your father’s will if he had one and on what basis the solicitor has registered the death where the solicitor simply seems to act for your late father’s partner.

Customer: replied 7 days ago.
He had no will I took care of his estate. I believe it's one and the same as it all seems to tie to the house the isa and now my dad's personal bank accounts, my question is how can a random solicitor ' be able to act on behalf of person who has no right to his personal monies and is not direct kin

The short answer is he can’t.  What he can do is tell the bank that there is a dispute and the bank will knee-jerk and simply freeze the account.

Ask the solicitor in writing exactly what he’s done and what gave him the authority to do that.

Customer: replied 7 days ago.
Thank you it's been very stressful I found out by chance that my dad had these other accounts and stocks and shares

Thank you.  So it begs the question how the solicitor found out although it may be that your late father’s partner has knowledge of them.

My offer letter to them would still be the same however although you need to mention that it would require them to say that there is now no dispute over all the other assets.

I don’t know whether you have grant of probate yet.  As you have, that should be sufficient for you to deal with the bank.  If you have and they want, make a complaint to the Financial Ombudsman.

Customer: replied 7 days ago.
I never needed it as at the time my dad assets where under 25.000 so it was sorted out directly with the other bank and insurance policy people but I am going to make a complaint if they knew before me my dad had other accounts surly they should have told us in sole form of writing

You would have thought so but very often, with banks, the left hand doesn’t know what the right hand is doing and the people that you are dealing with are short of the one brain cell which they need to actually do the job that they are required to do.  Even if they have that one brain cell it’s usually overworked