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A property is being transferred to two beneficiaries of a trust. One of the beneficiaries (party A) will reside at the property and the other (party B) will not. A wants to stay there for five years and B is agreeable to that. A will pay rates/insurance/utilities, but not any rent. In the absence of rent payable, what is the most appropriate way to document this? Would a licence be more appropriate than an assured shorthold tenancy? The intention is to document the occupation but not for A to accrue any additional rights to stay beyond the five-year term.
Q&As
In a scenario such as this, the legal mechanism to enable the occupation of A matters only in the event of a dispute. If A simply vacates the property after the expiration of the five-year period agreed with B, it does not matter whether A occupies as a licensee, as a tenant, or in some other respect. However, in order to protect against what would potentially be an acrimonious and expensive falling out in the event that A does not leave or
A property is held as tenants in common by A and B. B holds capacity but wishes for A to act for them under a lasting power of attorney whereby A is the sole appointed attorney. If a second trustee is appointed, is this an acceptable form of disposition and a valid receipt clause to overreach the form A restriction?
Q&As
In this scenario, we assume that A and B are joint owners of the legal title to the property which they hold as tenants in common. B has appointed A as their attorney under a property and financial affairs lasting power of attorney (LPA). The general rule is that any trustee functions delegated to an attorney must comply with the provisions of section 25 of the Trustee Act 1925. However, section 1(1) of the Trustee Delegation Act 1999 (TDA 1999) provides an exception to this rule stating that an attorney can exercise a trustee function of the donor if it relates to land in which the donor has a beneficial interest. This power under TDA 1999, s 1(1)
A property is held as tenants in common. The first owner has died and the second lacks capacity. There is a life interest trust. The family have an enduring power of attorney (EPA) and want to add trustees to the title. Can this be done? If the family wish to sell do the trustees need further powers or leave of the court?
Q&As
The legal ownership of jointly owned property in England and Wales (though not Scotland) is always held as joint tenants. This means that when one joint owner dies, their interest passes to the remaining joint owner(s) by virtue of the doctrine of survivorship, and does not fall within their estate, the rationale being that joint tenants each own the indivisible whole. The beneficial ownership of property can be either as equitable joint tenants or as tenants in common, with the latter meaning that they have a defined share which they can leave as they wish by will or under the laws of intestacy. It appears in this scenario that the deceased owner has left
A property is held by A, B and C as tenants in common and a Form A restriction is registered on the proprietorship register. A has passed away but remains as a registered proprietor and no grant has been obtained with regards to A's estate. Can B and C sell the property?
Q&As
Where property is held jointly in England and Wales, it is held in two manners. The legal ownership records in whose names the property is registered. The legal owners then hold the property on trust for the beneficial owners (also referred to as equitable owners). The beneficial owners will often be the same as the legal owners, but do not have to be. Legal ownership is always as joint tenants. This means that the registered owners hold the property ‘per muy et per tout’—each owns the whole, rather than defined shares. Beneficial ownership can be as equitable joint tenants, in which case the same applies, or as tenants in common, meaning that the beneficial
A property is held by H’s executors as part of the unadministered estate of H. The property was held as tenants in common with H’s wife, W, who has subsequently died. H’s executors acquired the property from H at the market value of the property at the date of H’s death under section 62 of the Taxation of Chargeable Gains Act 1992. Do the executors of H benefit from a second uplift in value for capital gains tax at the date of W’s death or is the increase in value between the date of H’s death and the date of W’s death a chargeable gain?
Q&As
In answering this Q&A, research has been limited to the issue of whether the property referred to in the query can benefit from a second uplift for capital gains tax purposes on the death of W. It has also been assumed that W was the sole beneficiary of H’s estate, including the property. On the facts provided, the executors of H will not be able to benefit from a second capital gains tax (CGT) uplift
A property is held in equal shares by the trustees of a life interest trust and an individual, A, the life tenant under the trust. A is also the sole registered owner of the property. What are the capital gains tax implications for the trustees and A of selling the property and replacing it with another property?
Q&As
In this Q&A it has been assumed that the property is the principal private residence of the life tenant of the trust. Principal private residence relief Both the trustees and the life tenant may be able to claim principal private residence (PPR) relief in respect of gains arising from the sale of the property. In the case of the
A property is held on trust by a corporate trustee, trustee A, for a corporate beneficiary. To appoint an additional corporate trustee (trustee B) to facilitate overreaching, are there any necessary steps besides submission of the relevant Form TR1 and Form AP1 to HM Land Registry. Is there any requirement for consideration for the transfer of legal title into the names of both trustee A and trustee B?
Q&As
In this case it appears as if the decision has been taken to appoint an additional trustee to ensure that overreaching of the beneficiary’s interest occurs on a sale of the land to a third party. This will occur when the proceeds of sale are paid to two trustees. It is not clear from the question whether or not this is in anticipation of a sale to a third party. In such a case, a buyer of land from trustees will not be affected by any of the trusts on which the land is held if the purchase price is paid to all the trustees (of whom there must be at least two)
A property is jointly inherited by several beneficiaries, one of whom is living in the property as their home. No life interest or right of occupation is granted to this beneficiary under the deceased’s Will. Does the beneficiary residing in the property have any right to remain in the property before the property can be sold?
Q&As
While an estate is being administered, the ownership of the deceased's unadministered assets lies with the personal representatives (PRs) for the purposes of administration. No beneficiary in the meantime, whether under the deceased's Will or intestacy, has any proprietary interest in any particular asset comprised in the unadministered estate. However, in collecting in and realising the assets in the estate, the PRs should have regard to the wishes and needs of the beneficiaries and should consult with the beneficiaries
A property is jointly owned and there is a declaration of trust setting out how the property is owned. One joint owner wishes to seek a sale of the property and there is a dispute as to the division of net sale proceeds. Should an application under the Trusts of Land and Appointment of Trustees Act 1996 be commenced under Part 7 or Part 8 of the Civil Procedure Rules 1998?
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The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) affords the court wide powers to deal with trusts of land, including to make a declaration as to the beneficial ownership of the property, to regulate its occupation, to order a sale, and to conduct an equitable account of the dealings of the parties. The court’s powers are primarily contained in TOLATA 1996, s 14, with the court having regard in particular to the factors set out in TOLATA 1996, s 15 when determining whether to make an order. The Civil Procedure Rules 1998 (CPR) apply to TOLATA 1996 proceedings. There is a
A property is jointly owned by husband and wife, with the wife acting as LPA attorney for her mentally incapacitated husband. On sale of the property, can the wife give valid receipt for the purchase monies and sign the transfer on behalf of herself and her husband? There is a standard Form A restriction on the title.
Q&As
Powers of the wife as attorney An attorney under a Lasting Power of Attorney (LPA) has the authority to sell the property of the incapacitated person if the following conditions are satisfied: • the LPA for financial decisions has been registered with the Office of the Public Guardian • there is no restriction in the LPA indicating that the donor did not want his spouse to exercise the trustee functions in relation to the property • the sale is in the best interests of the incapacitated co-owner in accordance with the provisions of section 4 of the Mental Capacity Act 2005 (MCA 2005) and the guidance contained in the MCA 2005 Code of Practice. See, generally: Lasting powers of attorney—overview The
A property is left by Will on a life interest trust. Can the remainderman’s interest be satisfied by an appropriation of cash and is there a time limit for doing so? Does the remainderman’s interest constitute a major interest in a dwelling for the purposes of the stamp duty land tax higher rates on additional dwellings rules?
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Acquisition or appropriation of remainderman's interest Under the life interest trust, the life tenant would either be entitled to live in the property or receive the income from it. The first question envisages that the life tenant could acquire the remainderman’s interest in the property and so acquire an absolute interest. The remainderman will receive cash in exchange for their reversionary interest. If there is no express power in the Will trust for the trustees to alter the beneficial interests, the life tenant and remainderman can agree to vary their interests under the rule in Saunders v Vautier. This is possible if they are both of full age and have capacity. It is not possible if there are any minors
A property is let to a tenant under an AST. The AST names 2 landlords, a husband and wife. The wife passes away. The surviving landlord wishes to make a possession claim to recover possession of the property. Can the claim be brought in his sole name, or does the claim need to be brought in the name of both landlords (the deceased landlord acting by her executors)?
Q&As
This Q&A has assumed that: • the husband and wife are the registered proprietors of the landlord’s title • the husband and wife hold the legal title on trust for themselves as beneficial joint tenants and there is no Form A restriction on the landlord’s registered title Where a deceased person had a claim but can no longer personally pursue it as a result of their death, their executors (or administrators after a grant of letters of administration) can bring proceedings in that capacity without adding as parties any of the beneficiaries of the Estate (CPR 19.10). Therefore,