Removing a part owner from a property

[steampowered]

Does it mean no sale full stop? Sale but funds in trust?

Hello

 

If this person is named as an owner on the land registry, I think you might need to go to court for this.

 

The Trusts of Land and Appointment of Trustees Act 1996 gives the court the power to order that a jointly owned property is sold.

 

Furthermore, if an owner cannot be located and is needed to sign land registry forms to complete a transaction, there is a statutory power allowing judges to sign such forms. I was involved with an issue where a judge signed those forms to complete the sale of a property, in circumstances where the seller had agreed a contract of sale but refused to complete, some time ago (although I cannot remember which specific piece of legislation we relied on. I suspect it is buried somewhere in the Law of Property Act 1925 or Land Registration Act 2002).

 

Before the judge would be entertain any of that, he would need to be convinced that all possible effort has been made to trace this person. For this purpose you would probably need to involve a professional in searching for this person to show that every effort has been made.

 

I think the above would need a court application by a litigation solicitor who knows his way around property disputes. That will cost. I doubt that a conveyancing solicitor would be able to help.

 

It is not clear to me what proportion of the property this person is entitled to. If the property is currently owned by the lady and the missing person as "joint tenants", I'm afraid this person may be entitled to be 50%. If the property is owned as "tenants in common", it would depend what proportion was agreed at the time. The judge would probably want to see that the sale proceeds owed to this person are held in trust or otherwise protected.

 

You asked about the lady being 92. I imagine the solicitor would want to see evidence that she knows and consents to what is going on. The solicitor should be able to handle this. Solicitors involved in things like powers of attorney, wills etc. will be alive to these issues and should know how to take instructions from very elderly people. I imagine the best way of doing it would be for the solicitor to get some sort of consent from the lady for a relative to deal with the matter on her behalf.

[BazzaS]

In theory, yes, some legal professional would be an option. I'm not sure who has the power to have that meeting, given the lady herself is 92 and I honestly don't know if she has capacity for it (in a physical or mental sense). If she doesn't, does the discussion need a power of attorney or can it be held informally initially by the relative (which I think is a nephew) who she plans on leaving the property to?

 

Yes, I know that any action would likely require either the lady or power of attorney passed to someone to go forward, but is that required for just advice?

 

Or would a better option be for the lady to deed the house to her chosen relative (or share of, you know what I mean) and then for him to sort it out?

 

Would it make a difference which way as far as any legal things go?

 

If the owner doesn't have capacity to decide, the options are

1) to wait until she passes away, when her share passes with her estate (if the equitable interest is held tenants in common), or if held as joint tenants it will pass to the survivor (unless they predeceased her : when it is hers in its entirety), or

2) a new power of attorney can only be created (while she is alive) by the court (where they will be known as a "deputy", and the Court of Protection appoints them).

 

As SP has pointed out, a court could order the sale with the missing part-owners share then being held on trust for them.