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A and B are co-owners of freehold property. They have exchanged a contract to sell it to C and the completion date has passed. A wants to serve a notice to complete on C, but B does not wish to do so. Can A do so unilaterally?
Q&As
Since the advent of the Law of Property Act 1925 it has been possible to own real property legally in joint names only as joint tenants. The legal owners hold the beneficial interest on trust, ordinarily for themselves, either as equitable joint tenants (in which case they each own the whole and on the death of one their interest is extinguished with the other owning the whole under the doctrine of survivorship) or as equitable tenants in common, meaning that they own defined shares. The contract to sell the property to C will almost certainly involve a transfer of the legal as well as the beneficial interest. Where trustees are appointed it is axiomatic
A and B are joint owners of the freehold of a building. There are two flats; A is the tenant of one and B the tenant of the other. A serves a notice under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993. However, A and B cannot agree the terms of the section 45 counternotice. Can B sign it alone? If not, how can the landlord protect its position?
Q&As
A section 45 notice under the Leasehold Reform, Housing and Urban Development Act 1993 must be given by the landlord. Unlike a section 42 notice, it does not need to be signed by the landlord, but it still must be given by the landlord or on
A and B are neighbours with a documented right of way for B over A's land which is recorded in the Land Registry on the titles for each property. A dispute arose about the physical extent of the right of way which the parties have reached an agreement over. How should this agreement be documented and the records updated with the Land Registry?
Q&As
We refer you to Practice Note: Property boundaries and, in particular, the section headed
A and B are owners of a registered property as joint tenants. Can an equitable charge be created between A and B (owners) and A (lender) or does section 23 of the Land Registration Act 2002 prevent this?
Q&As
Section 23 of the Land Registration Act 2002 (LRA 2002) states that: • owner’s powers in relation to a registered estate consist of: ◦ power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a mortgage by demise or sub-demise, and ◦ power to charge the estate at law with the payment of money On the face of it, therefore very wide powers are given, but it is apparent that they are subject to the limitation as to the ability to grant charges over the land. It was possible to grant a mortgage
A and B are the legal owners of a property situated in a EU state. They wish to execute a declaration of trust governed by English law stating that they hold the property on trust for A, B, C and D. Would HMRC be bound by such a declaration?
Q&As
We have assumed that: • A and B have the requisite capacity under English law to enter into the declaration • the laws of the state in which the property is situated do not prohibit A and B from entering into the declaration We do not have any information on whether HMRC would accept a declaration of trust over foreign property as contemplated by the question. However, we refer you to Q&A: To what extent will English law recognise and enforce in England a trust holding only foreign property, if both the trustee
A and B enter an agreement involving the transfer of property. Subsequent to contract, it emerges that A is unable to perform its obligations under the contract as title to the property instead lies with A's relative. B acted in good faith and was unaware of this mistake. As A was never in a position to perform the contract, does his position at law differ to if A were in breach of contract in the ordinary sense?
Q&As
It is likely in this type of scenario that the grounds for relief would be mistake or misrepresentation rather than breach of contract. In terms of remedies, rescission ab initio (where the contract is treated as if it never
A and B enter into a matrimonial settlement under which A acquires B’s interest in an investment property and B acquires A’s interest in the family home. The investment property becomes A’s main residence. Will there be a capital gains tax liability when A later sells the property?
Q&As
Provided that the property has been A’s only or main residence, A should be able to claim principal private residence relief in respect of any gains arising on a disposal of the property under the normal rules. The relief would cover the period from when the property became A’s only or main residence until the date of disposal. The relief would also cover the
A and B held a property as tenants in common. A died leaving their interest in the property to their two children, C and D subject to a life interest trust of A’s share in favour of B. B has lost capacity and there is a registered lasting power of attorney appointing C and D jointly. How can the parties update the register so that the legal interest is held by B, C and D?
Q&As
In this situation, the tenants in common would have registered a standard Form A restriction. Appointment of new trustee to hold the legal title On the death of a joint proprietor, where the property was held as tenants in common, only the beneficial interest passes to their personal representatives. The interest of a deceased person under a tenancy in common, where another joint owner survives the deceased, is an interest ceasing on their death (see Commentary: 951. Deeming provisions in relation to real estate). As the legal interest was held (and could only be held) by A and B as joint tenants, A’s interest in
A and B held property as tenants in common. A died leaving his share in one property to C and his share in another property to D and E. B has lost capacity, but has a registered lasting power of attorney appointing C and D as attorneys. Can C and D as B's attorneys transfer the legal title to the joint names of B & C in respect of the first property and B, D and E in respect of the second property?
Q&As
On the death of a joint proprietor, where the property was held as tenants in common, only the beneficial interest passes to their personal representatives. The interest of a deceased person under a tenancy in common, where another joint owner survives the deceased, is an interest ceasing on their death. As the legal interest was held (and could only be held) by A and B as joint tenants, A's interest in the legal estate ceases on their death. B is the sole owner of the legal interest, but holds the equitable interest on trust for B and the
A and B jointly own a property subject to a Form A restriction. B historically lost capacity and appointed A as their sole attorney. Can A exercise their own statutory powers as trustee and those of B as attorney in order to appoint a new trustee along with A and B so as to give a good receipt for the capital monies arising on a sale of the property?
Q&As
It is common when there are joint proprietors or a sole proprietor who hold the property on trust for beneficial tenants in common for there to be entered onto the title register at HM Land Registry a restriction in Form A. There is no need to do so where joint proprietors hold for themselves as beneficial joint tenants, as the trust will come to an end when one only is left, due to the operation of survivorship. A Form A restriction provides that there shall be no registration of any disposition by a sole proprietor of the registered
A and B jointly own a property subject to a form A restriction. B historically lost capacity and appointed A as their sole attorney, A cannot sign on their own behalf and on behalf of B as attorney. However, A can nevertheless effect a sale of the property notwithstanding the form A restriction by appointing an additional trustee using the power under section 1 and section 8 of the Trustee Delegation Act 1999 (TDA 1999), who together can then convey the property and effect registration of the transfer. This will ensure that the proprietor takes the property without any question of there being an interest. By virtue of Law of Property Act 1925, section 2 and section 27 any interest to which the restriction is attached is overreached and the claim is therefore against the sale proceeds. The question is, when appointing the additional trustee, can A do so unilaterally or, as A and B remain on the title, must A make the appointment acting on behalf of themselves and also acting for B?
Q&As
A can effect a sale of the
A and B lived in a property registered in A’s name and held on trust for A and B 50/50 under a declaration of trust. A dies and B wishes to buy A’s interest in the property from A’s estate, but claims that B’s interest in the property is greater than 50%. Agreement is reached with the personal representatives of A’s estate so that B pays less than 50%. A’s estate and B waive other claims. What rights do the beneficiaries of A’s estate have if they believe that the property was sold to B for less than it should have been or are unhappy with the agreement?
Q&As
This Q&A deals with the rights that beneficiaries of an estate may have against a personal representative (PR) where it is considered that the PR may have sold an estate property at an undervalue. The PR’s duties The PR, whether an executor appointed under a testator’s Will or administrator acting in an intestate estate, owes certain duties to the estate beneficiaries, among other things to ensure that the estate is duly administered