Help needed re home ownership for unregistered house

Susan Mcr

Registered User
May 18, 2017
6
0
Hi all, I'm new here. I found this page when searching the net for help. Apologies that this is so long, but it's a bit complex.

Both my parents have dementia and both went to live in (different) care homes within a few months of each other 2 and a half years ago. I am a COP Deputy for my dad only. This is because the title deed for their house is in his name only, so when financial assessments were first done the house was considered to be his, so with his pensions and savings he has to self-fund. Mum has less than £23,000 savings, so she is funded by the Local Authority so there was no need to apply to COP.

The house has never been registered with the Land Registry. Dad bought the house in 1967 and paid the mortgage and bills, as mum wasn't working (she later worked part time only). It is in a bad state now, but is probably worth £160,000.

Just as I was getting the COP authority in 2016 my parents social worker asked to see what documents I had relating to the family home. I was having chemo at the time, didn't feel great, and the social worker had been helpful, so I just gave her the file I have with all the house documents in. One document was a single page relating to a loan taken out 20 years after the house was bought - at the top of the page is says it is a "Legal Charge", has the house address on and is signed by both mum and dad (I believe this is similar to a mortgage). From the timing I think this was probably so my dad could buy a new car. There was also a PPI-type insurance policy taken out solely by my dad so that if he was made unemployed the loan would be paid off - no mention of mum paying it. The kindly social worker asked if she could copy some documents, which I was happy to do because I didn't know what that document was, but thought everything was fine.

Lo and behold I got a letter from the Local Authority saying this Legal Charge meant my mum has a 50% beneficial interest in the house, taking her over the savings threshold so she is now responsible for paying her care home fees, back dated. She has arrears of £34,000, increasing by £2000 per month. Dads outstanding fees are £32,000 (these were due to be paid when I sold the house).

I got legal advice, my solicitor told the LA their decision was incorrect as the deed is in dads name; that I had got COP based on dad being sole owner and that were dad to die the Inheritance Tax documents would state he was the sole owner - but because the loan document is headed Legal Charge, and mum signed it, she failed to get them to change their minds. BTW, it took them OVER A YEAR to come to this decision!

My solicitor left the practice and her colleague is basically saying the council are probably right. She can only advise that I get her to instruct a barrister to litigate against the council over the legality of the Legal Charge - a process that will end up in court and will cost many thousands of pounds, but that may fail also.

I am so fed up with everything that I'm thinking about leaving it there, but even accepting the LA's decision means I now have to apply to COP for Deputyship for my Mum, deal with the Land Registry and then sell the house. Not to mention there will have to be changes made with Dads COP, because the information I supplied initially will have to be changed, based solely on the LA's solicitors decision.

So, do you all think this one loan taken out in 1986 means my mum basically owns 50% of the house? Could it be that I should argue that she does have a beneficial interest in the property but that it shouldn't be 50%?

I'm not sure I could face a court battle with the council, especially if my cancer returns, so expect I'll just give in now and pay them what they want.

Does anyone have an opinion that differs to the Council?
Many thanks in advance,
Susan
 

Slugsta

Registered User
Aug 25, 2015
2,758
0
South coast of England
Hi Susan and welcome to TP - although I am sorry that you have need of us! :(

Have yopu actually looked at the Land Registry entry to see whether they have anything on record, or are you just assuming the house is unregistered because you could not find any paperwork?

It would certainly be worth looking at what the LR have, if anything, if you have not already done so. I believe there is a small charge for this (under £5 I think). It might also be worth actually speaking to someone at the LR, I have heard they can be very helpful.

If nothing else, my reply will have moved your thread further up the page where someone else (who might be of more help) can see it.
 

Katrine

Registered User
Jan 20, 2011
2,837
0
England
I think you need to consult a solicitor specialising in property law. Your mum's signature on this secured loan document did NOT necessarily mean that she had a beneficial interest in the property.

By the 1980's the world had moved on from the previous norm of the husband dealing with all major family financial matters, where he didn't have to consult or even inform his wife if he didn't wish to. Any adult residing permanently at that address would have an interest in the security of their living situation. Lenders would have expected both partners to sign. IMO she only signed as joint householder, i.e. joint occupier, not joint owner.

I believe that at some point (sorry I haven't got chapter and verse on this) the law required all permanent resident adults to attest to their awareness of a new mortgage being applied for. OH says that our eldest son had to sign a mortgage form when we last applied (about 10 years ago). That did not confer any beneficial interest on our son, in the sense of giving him a financial stake in the property.
 

Jessbow

Registered User
Mar 1, 2013
5,678
0
Midlands
Who is the legal charge issued by? Presumably the equivalent of the mortgage company that loaned to money to buy the house?

Or do I have the wrong end of the sick?

In which case, I'd say your mum prob does own half the property, although the deed maybe in dads name only.

You might also need to be sure that the charge no longer exists-
 

cragmaid

Registered User
Oct 18, 2010
7,936
0
North East England
I do remember being asked at the time, did anyone else live in Mum's house as they would have had to sign to say if they held an interest in the property. This was when the LA was taking the charge relating to a Deferred Payment.

I would contact a solicitor dealing in property law, ask them to clarify the position regarding the registration of the property, and if at that point it is only in Dad's name then consider fighting the LA's claim that 50% of the property is classed as Mum's.
 

Susan Mcr

Registered User
May 18, 2017
6
0
LR checked

Hi Slugsta,

Thanks for replying and helping push up my post!

I paid to check the Land Registry when I applied for COP, then when the council got in touch my solicitor checked also - it has never been registered.

Thanks,
Susan



Hi Susan and welcome to TP - although I am sorry that you have need of us! :(

Have yopu actually looked at the Land Registry entry to see whether they have anything on record, or are you just assuming the house is unregistered because you could not find any paperwork?

It would certainly be worth looking at what the LR have, if anything, if you have not already done so. I believe there is a small charge for this (under £5 I think). It might also be worth actually speaking to someone at the LR, I have heard they can be very helpful.

If nothing else, my reply will have moved your thread further up the page where someone else (who might be of more help) can see it.
 

Susan Mcr

Registered User
May 18, 2017
6
0
Thanks for your reply.

The legal charge wasn't issued by the same company as the initial mortgage used to buy the house (ironically enough that was the same council who are now going to get all the money, plus much more, back again!).

There is a document to say was the charge no longer exists as the loan was paid back.


Who is the legal charge issued by? Presumably the equivalent of the mortgage company that loaned to money to buy the house?

Or do I have the wrong end of the sick?

In which case, I'd say your mum prob does own half the property, although the deed maybe in dads name only.

You might also need to be sure that the charge no longer exists-
 
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Susan Mcr

Registered User
May 18, 2017
6
0
I could try a different solicitor but I still think it will need a barrister to get involved, as it will be one solicitors opinion against another.

I do remember being asked at the time, did anyone else live in Mum's house as they would have had to sign to say if they held an interest in the property. This was when the LA was taking the charge relating to a Deferred Payment.

I would contact a solicitor dealing in property law, ask them to clarify the position regarding the registration of the property, and if at that point it is only in Dad's name then consider fighting the LA's claim that 50% of the property is classed as Mum's.
 

Susan Mcr

Registered User
May 18, 2017
6
0
You're probably right, but I'm sure they will say the same - a barrister is needed to take the case to court because at the moment we are stuck with two solicitors having their own opinions, and only a court case will decide which is the correct opinion.

The worry then is that I'll be spending thousands of pounds on my credit card to fund this, which will amass huge interest because I won't be able to claim the money back until the case has been decided, I have applied for COP and sold the house which could be well over a year.

I think you need to consult a solicitor specialising in property law. Your mum's signature on this secured loan document did NOT necessarily mean that she had a beneficial interest in the property.

By the 1980's the world had moved on from the previous norm of the husband dealing with all major family financial matters, where he didn't have to consult or even inform his wife if he didn't wish to. Any adult residing permanently at that address would have an interest in the security of their living situation. Lenders would have expected both partners to sign. IMO she only signed as joint householder, i.e. joint occupier, not joint owner.

I believe that at some point (sorry I haven't got chapter and verse on this) the law required all permanent resident adults to attest to their awareness of a new mortgage being applied for. OH says that our eldest son had to sign a mortgage form when we last applied (about 10 years ago). That did not confer any beneficial interest on our son, in the sense of giving him a financial stake in the property.
 

jenniferpa

Registered User
Jun 27, 2006
39,442
0
I only have one real comment, which may or may not help to clarify this issue in your own mind. If your parents had got divorced, rather than being hit by dementia, then despite whatever the deed said, your mother would have been entitled to 50% of the house. I have to say I can't see how she doesn't have a beneficial interest in the house and I do think your initial solicitor steered you wrong.

In other words, I think the fact that there was a loan taken out against the house at some point is a bit of a red herring here. Even without that, she would have had a beneficial interest. In fact, I think if you applied to be a COP deputy for your mother, or if someone else did, they would be duty bound to push this 50% beneficial interest point and I really can't see that they wouldn't succeed. It really is a matter of fairness and how property is considered when a couple is married for such a long time.
 

Kevinl

Registered User
Aug 24, 2013
6,059
0
Salford
It really is a matter of fairness and how property is considered when a couple is married for such a long time.

I don't agree (sorry Jen), if I own a house then I own it in law. If you get divorced the court can order me to give you half the house but they don't have to order me to, the just usually do.
I'd as your dad's POA refuse the claim and invite them to prove the beneficial interest as required by the "Trusts of Land and Appointment of Trustees Act 1996", this may make them go away or they might want to take the case to court, you can then decide what you want to do.
Everyone understand that when a couple divorce even if the man owns the house the wife will get half or sometimes all of the house even if she's never paid a penny towards it, that is the way the world works, however, you could argue that in this case as the money is need to pay for your father's care in a nursing home giving her a beneficial interest would be unfair on him. The beneficiary in this case would be the Local Authority and not your mum, so as she derives no benefit as such it's the LA who are benefiting not her.
As others have said you need some advise from a specialist in land and property law not a High Street solicitor. Barristers are instructed by solicitors and so you'll have to have one anyway I'd find someone who specialises in land and property disputes.
Might have the makings of an interesting case.
K
 

jenniferpa

Registered User
Jun 27, 2006
39,442
0
You might well be be right. I was just pointing out how it could play out. If it did come to a court case, you might well end up with multiple interested parties. And those sorts of cases can blow through 160k in no time at all. I think you have to be pragmatic in cases like this.
 

sue38

Registered User
Mar 6, 2007
10,849
0
55
Wigan, Lancs
If your mum and dad were getting divorced then your mum would be able to make a claim for a share of the house under the Matrimonial Causes Act. But as they're not getting divorced this doesn't apply. The Council would have to prove that even though the legal title is in dad's name that doesn't truly reflect who has an interest in the property.

This is a complicated area of law, but I have to say that I think the onus is on the Council to rebut the presumption that this is dad's property and I'm not sure a joint loan agreement is sufficient.

If the solicitor thinks it's worth getting the opinion of a barrister who specialises in this area it might be worth it, but check the likely cost first.
 

Susan Mcr

Registered User
May 18, 2017
6
0
It seems this is one of those cases that could go either way in court. If money were no object I'd take it to court but I can't risk losing thousands and still having to pay the care home fees. I totally agree with sharing property when divorcing, so morally the house should be shared to cover care costs. However, this doesn't happen. The council were happy that dads name was the on the deeds and that mum had no financial interest in the house and were happily funding her care until the existence of this document came to light. It's just that a loan agreement seems scant legal evidence for them to now be adamant that mum has a 50% beneficial interest.

I don't think I'll take it further because it appears a litigation battle would be a complete gamble that, knowing the luck my family have had, I'm not going to win!


You might well be be right. I was just pointing out how it could play out. If it did come to a court case, you might well end up with multiple interested parties. And those sorts of cases can blow through 160k in no time at all. I think you have to be pragmatic in cases like this.
 

Kevinl

Registered User
Aug 24, 2013
6,059
0
Salford
As A POA you are obliged to act in your dad's best interests at all times.
Losing half his house that may be needed to pay for his care isn't in his best interests.
An action would have to be brought either by the LA or the LA acting on your mum's behalf, this might mean they need to go to the CoP and get deputyship to bring the case. As it isn't the LA claiming the house I can't see that they can do it without getting a CoP deputyship as your mum can't do it herself, that would take time and cost them money.
Even if it does go to court a loan to buy a car secured on the house may needed to be signed by all the residents of the house not the owners so the residents understood that a default on the loan could make them homeless, so it's a pretty flimsy piece of evidence in the first place to use as proof of ownership.
Anyone knows that courts can make decisions can make some strange decisions, in every case one side is the loser. Is it really worth the LA going down the legal route.
I can't help but disagree with the solicitor who told you to take action against the LA, it is for them to start the litigation and for them to prove that the beneficial share exists not for you to prove it doesn't.
The LA aren't judges, they aren't there to tell you what the law is it's just the opinion of their legal department, tell them to put up or shut up and take you to court.
The Court of Protection have already ruled the house belongs entirely to your father, it's for them to get that ruling overturned, not jumped up little snot in the LA can do it by deciding he doesn't agree with the CoP.
Come have a go if you think you're hard enough as we say round here.
Currently the law is on your side the CoP have said so.
K
 

cragmaid

Registered User
Oct 18, 2010
7,936
0
North East England
Has the LA seen the title deeds which will state the name of the purchaser? I am surprised that the solicitor who handled the purchase of the property failed to arrange the registration. I would continue to press the LA for their evidence showing that Mum has a legal ( not moral) claim to half of the property despite not being legally responsible for said property.

It it a firmly held belief here that a spouse can live in a property when their husband or wife is in residential care and the house is normally disregarded in financial assessment as the marital home At no point have I ever heard that this disregarded property is automatically classed as jointly owned. Now I understand that if certain election manifestoes are to become law this might change, but at the moment this is the situation.

Assuming that your father has made a will leaving the property to your mum. if he dies first, then the LA might be able to claim for some funding, but only from the date of her inheritance. It cannot be backdated to a time before she had access to the funds. They are not hers until her husband dies.

Tell the LA that you are seeking legal advice, but you wish to read their evidence too.

Good Luck.x.
 

sue38

Registered User
Mar 6, 2007
10,849
0
55
Wigan, Lancs
I am surprised that the solicitor who handled the purchase of the property failed to arrange the registrationn

As the OP's dad bought the property in1967 it's likely that registration was not compulsory in that area at that time, so the solicitor didn't do anything wrong. Compulsory registration of land when it changed hands was brought in area by area throughout the country from 1925 to the beginning of this century.

Now you've brought up the issue of registration however it might be an idea to apply for vountary registration of the property in dad's name which might make the LA's job of proving mum's interest in the property that much more difficult.
 

Kevinl

Registered User
Aug 24, 2013
6,059
0
Salford
I am surprised that the solicitor who handled the purchase of the property failed to arrange the registration.

Compulsory registration of land wasn't all that common in 1967 when the house was originally bought, it didn't come in here where I live until 1974 but some parts of the country were as late as 1990, 15% of land/property is still unregistered.
It might be something worth checking if you have lived in the same house for a long time, it's only a mortgage, re-mortgage or a change of ownership that triggers it unless you do it voluntarily so there could be quite a few in a similar position.
K
 

jenniferpa

Registered User
Jun 27, 2006
39,442
0
Am I the only person a bit concerned that no one is representing the mother in all this? I totally get the point that the only "person" who would be helped by her being deemed to own 50% of the property would be the LA, not actually her, but it occurs to me that the LA might decide that "the mother's rights should be protected" and take action accordingly. They could go to the COP themselves. I just don't want the OP to start fighting this without considering all the ramifications.

Nor am I sure that the COP "made a decision that the house was owned solely by the father". True they accepted that it was, but that's not the same as making a decision, where competing claims are weighed.
 

jenniferpa

Registered User
Jun 27, 2006
39,442
0
To continue: I suppose in the OPs position I'd do a cost/benefit analysis. If she goes the route of least resistance (which would be accepting the LAs position) she will 1) have to get deputyship for her mother 2) almost certainly need to reapply to cop for her father in light of the new "ownership" of the property (I'm not sure about this point though, it rather depends on what the original order said), 3) pay her mother's arrears, thus reducing her father's "pot". But on the other hand, with care home fees as they are, both of her parents assets are going to be diminished rapidly so it's entirely likely that before long, the LA will be funding both of them.

Alternatively, she fights them on this without any guarantee of success, but say she is successful: Her mother would remain funded by the LA and her father would be self-funding for what, the next 5 years? Probably less. I don't know how old the OPs parents are but I can easily see this being a wash purely from the point of view of the finances.


There's a great deal of hassle involved whatever route she chooses, but I have to say with the former route, it's a known amount of hassle with a reasonably known amount of financial outlay (with the money coming out of the parent's assets) while with the latter, the financial outlay is almost impossible to know at the beginning.

Which is not to say I would be in any rush to make it easier for the LA. I really feel for the OP because it's a jolly difficult position to be put in.