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Stuart J
Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 26444
Experience:  Senior Partner at Berkson Wallace
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I am executor to my late mums will. Mum has a 1% share in a

Customer Question

I am executor to my late mums will. Mum has a 1% share in a property in which she is listed in the Title Deeds and there is a Tenants in Common and Declaration of Trust for the property. The 99% share of the property is owned by mum’s late partner’s daughter who now has the benefit of the property. This person would like to buy the 1% share immediately as she wants to let out the house. The question is can I sale the 1% share before we receive Probate? Many thanks.
Submitted: 13 days ago.
Category: Property Law
Expert:  Stuart J replied 13 days ago.

Hello. Thank you for the question. It is my pleasure to assist your with this today.
I have been in the legal profession, in high street practice, for 30 years so I have wide range of experience in a great many different aspects of law.
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.

Expert:  Stuart J replied 13 days ago.

When did your mother pass away?

and what is the rush from this person do you know?

Customer: replied 13 days ago.
Mum died on 19th March. She was tenant in common with her late partner who die two years ago. Mum is the sole proprietor on the Title Deeds now (her late partner’s solicitor didn’t complete the process of putting his daughter’s name on the deeds). The daughter wants to raise income from letting out the house. We have cleared it of all of mums possessions and the daughter is currently redecorating it ready for letting it out.
Expert:  Stuart J replied 13 days ago.

There is nothing to stop you selling the share without probate and signing any contract as the executive/personal representative and signing the transfer deed as executor. You can take the money and distribute it in accordance with the terms of the will.

You can then walk away from it BUT if she has a solicitor dealing with this the solicitor will not let her do it because until such time as probate is granted, she cannot register her 100% interest.

So I’m afraid the 1% is likely to hold everything up because she can’t remortgage unless she has 100% or the consent of the 1% holder which she isn’t going to get.

Having said all this, there is a potential way round it but it’s not something which I or my colleagues have ever done but I know it can be done. However many solicitors will not do it and for that matter some solicitors don’t think it can be done but I know it can.

Removing the deceased co-owners name is straightforward. You complete this form https://www.gov.uk/government/publications/deceased-joint-proprietor-djp

and send it to the Land Registry along with an original copy or a certified copy of the death certificate to this address:

Address for members of the public

HM Land Registry Citizen Centre
PO Box 74
Gloucester
GL14 9BB

However it may or may not be more complicated than that. If the property is jointly owned it can be owned as tenants in common jointly or joint tenants jointly. You say yours is Tenants in Common.

You can get the title deed and the plan quickly and easily by using this link:

https://eservices.landregistry.gov.uk/www/wps/portal/!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 do not need the plan

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 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.

So in summary, if the restriction IS IN THE REGISTER, then you are going to need grant of probate there is a will or letters of administration if there is no will. The process is the same whichever.

Here is the government website on that: https://www.gov.uk/applying-for-probate/apply-for-probate

The surviving co-owner does not need probate to remove the name, ( that is done with form DJP and the death certificate,) only to remove the restriction.

if the restriction IS NOT IN THE Register, then the property passes immediately to the survivor under the rule of survivorship and probate is not required, always is needed is form DJP and the death certificate.

If you go to the wording of the restriction “no disposition by a sole proprietor et cetera” is what prevents her selling or remortgaging the property.

She can appoint a second trustee and then the restriction can be removed.

However as I said, it’s not something I have ever done, it’s not something my colleagues have ever done, it’s not something which the majority of solicitors have any knowledge of and the majority of solicitors will say it can’t be done. I know it can be done but I don’t know anybody who’s ever done it.

For the layman, it’s a somewhat complicated piece of law and if solicitors don’t do it, it really isn’t DIY.

I’m sorry, I know this is not the answer you wanted but I think it’s probably the answer that you thought you were going to get.

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

Stuart

Customer: replied 13 days ago.
Thanks Stuart. That’s a very detailed answer so I will read it again when I finish work later today. I will contact you again if I have any more specific questions. Many thanks. Wendy
Expert:  Stuart J replied 13 days ago.

No problem. I will check in again later today.

Expert:  Stuart J replied 13 days ago.

It's my pleasure to help. I’m glad that I was able to help so far. Thank you for trusting Just Answer with your legal problem. Can I help you any further with this? I'm happy to clarify anything which is outstanding. Please don't hesitate to ask. Kind regards Stuart

Customer: replied 13 days ago.
Hi Stuart,I have now had the opportunity to read your comments and check the title deeds. Section B shows mum as proprietor and has sub sections 3. and 4. show a restriction and a covenant. I have attached a scanned image.The daughter (Julie) took over the house on Sunday and she refused me entry when I went there on Monday to pick up a few remaining items that belonged to mum and to talk to her about the 1% share. She actually swore at me from the bedroom window when I rang her mobile to ask her to open the door. My sister and I find this very upsetting. Meanwhile, Julie’s solicitor has rung me to ask us to sell the share immediately and that told me that we don’t need probate to do so.Can we ‘demand’ access to the property and can we prevent her from renting it out whilst mum’s estate owns 1% of the property?Thank you.Wendy
Expert:  Stuart J replied 13 days ago.

Thank you. there is a restriction at 3 of the Proprietorship Register which is a Format A restriction in respect of a former joint proprietorship. It is a standard “tenants in common” restriction. That fits in with what you say that she was tenants in common with her late partner who died two years ago.

All the other entries are not relevant to your question.

So presumably Julie inherited her father’s share so there must be a transfer somewhere or a deed which says that your mother owned 1% and her late partner under 99%. I assume there is no dispute over that.

There is nothing to stop Julie buying the house now with no probate because that can be sorted later. She is presumably not bothered about the restriction and she can get that removed in due course.

My advice to you: agree to sell the share. If you don’t, you will end up in court and on the receiving end of a court order and costs which would probably be 10 times (or even more) than the 1% share.

You can demand access to the property as the executors of your late mother’s estate and her interest in the 1% but if you have been locked out, an injunction to get in is going to cost five grand and it begs the question as to why you want to get in.

It’s unlikely that a court would stop them renting the property in the interim but you would be entitled to 1% of the occupational rent.

Because your mother share is so low, I’m sorry to say it’s not really worth arguing over. Sorry to be so blunt. I know it’s not the answer you wanted.

I am assuming that you accept that your late mother share is indeed only 1%.

Customer: replied 13 days ago.
Thank you so much for your advise. I will share it with my sister. Many thanks. Wendy
Expert:  Stuart J replied 13 days ago.

I am glad to help

If you don’t have any further questions, I will mark this question thread as complete but don’t worry, the thread stays open if anything else crops up over the course of the next days weeks or months.

I’m glad that I was able to help.

Thank you for trusting Just Answer with your legal problem.

Kind regards

Stuart

Customer: replied 11 days ago.
Hi Stuart,I want to draw up response to Julie’s solicitor who has verbally asked that both myself and my sister, as executors, send him emails confirming that we agree to sell our 1% share for £3700 in full and final settlement. At which point he will draw up the necessary paperwork for us to sign off.I would like to include in our acceptance that this is on condition that Julie does not deduct from the sale price any charges or invoice us for any work that she feels mum should have carried out at the property before she died (the Will said that mum could “occupy the property for as long as she may wish SUBJECT ALWAYS to my said partner accepting full responsibility for the cost of maintaining and repairing the property to a standard acceptable to the Trustees”).Could you advise how best to word this please.Many thanksWendy
Expert:  Stuart J replied 11 days ago.

You don’t need a letter from me. You have done it perfectly adequately as it is.

I would make a couple of minor amendments which are “does not deduct from the sale price any charges or invoices for any work in respect of any dilapidations which she feels mum should have carried out at the property before she died.

AND

but she makes no deduction in any other respect including legal, surveyors, or any other costs

AND

for the avoidance of doubt, we will receive net total GBP3700 which will be in full and final settlement of her claim and our claim

Customer: replied 11 days ago.
Thank you Stuart. You are amazing. Wendy
Expert:  Stuart J replied 11 days ago.

My pleasure