sale of joint property after a death

[whojamaflip]

Scenario is 3 relatives owned property - said property was in the process of being sold when 1 died. Deceased share passed to beneficiary through will

Sale is going ahead, estate not finalised yet and conveyancing solicitor says beneficiary has no say in the sale as they are not on land registry documents therefore have no legal right to be involved.

Is this right? Beneficiary does not want to stop sale but surely if not the beneficiary, the executors should be involved as well as the surviving relatives.?

Depends on how the property was "held".

There are 2 ways to own property jointly in England and Wales:

1: If one person dies, their "share" actually just goes to the other owners
2: If one person dies, they can leave their share in their will.

It depends on how it is registered at the Land Registry.

It sounds like option 1 is the case, but check with the solicitor and see here

If it is option 1 (Joint Tenants) then the beneficiary actually has nothing to do with the property and no rights to any of the proceeds of sale.

The property is farmland which was purchased jointly by 3 brothers and was held as a partnership asset for their business. There is an issue with a right of access to further land beyond the land to be sold which is being dealt with by means of a licence granting a right of way but only to the surviving brothers for their lifetime only.

The share of the land owned by the deceased brother can be willed on and there is no dispute over this - the problem is that the beneficiary has been told they have no legal right to be included in the right of access because their name is not on the land registry documents so only the surviving brothers are entitled to the licence.

This has the potential to be a big headache in the future should the brother die and the business finds they have no way of accessing the retained land.

I guess my question is - surely the deceased brothers executors should be signing the licence for right of access on behalf of the beneficiary as the deceased brother is named on the land registry documents?

This is a question for the solicitor to answer. It's something they need to untangle with all the facts, and put a new licence in place if necessary.

Think we shall have to try a different solicitor then as this question has been asked twice of the conveyancing solicitor and both times the beneficiary has been told it's nothing to do with them!

Nothing has been signed but the purchasers are understandably pushing to complete the sale.

Thank you

You need your own solicitor, certainly. If the property hasn't been passed over to you (are you the beneficiary - sorry for your loss) then you can't deal with any of the paperwork.

Is it a transfer to a spouse? Seems odd that it (the sale of the land) has not gone through the delays and hassle of probate! Is it something to do with the partnership agreement?

Hope it gets sorted out very soon.

It's a transfer to a son who is also a partner in the business - the surviving brothers are elderly and the son (my Dh) is reluctant to encourage them to sign something which may be detrimental to the business and against the declaration of trust and the partnership.

There is definitely no opposition to the sale of the land - the proceeds will also come under partnership assets so that won't affect the business - it's just the right of access to the land which is being retained that's the problem. Dh doesn't want to find himself in the position in the next few years where both brothers have passed on and he's left with land he can't get onto. The licence States categorically that the right of access will cease on the death of the last surviving brother.

Solicitor might be right - one brother has died and two remain. So the licence is doing what it says, ceasing upon the death of the final brother. If it was written so as not to pass onto the next generation then why should your dh benefit.

However it seems odd it was written like that in the first place - how was the land supposed to accessed once all the brother had died?

Sorry I wasn't clear - the licence for access is being drawn up as part of the sale of the land - nothing in place yet - it's the conveyancing solicitor who is putting the restrictions in place. Their argument is that as there are only 2 surviving brothers on the land registry documents they are the only ones who can benefit regardless of the fact that the deceased brothers share is legally passing title to Dh and my argument is that surely the new third share owner should be afforded the same right of access benefit.

Dh is ringing our solicitor today to try and get clarification.

This sounds very strange.

Surely the surviving brothers would have beneficiaries in their wills who would need the benefit of the licence for access.

Do they realise the implications of the solicitor's plans?

Ah ok I think I understand. Your DH has a beneficial right to the property but not a legal one yet if he isn't a registered owner. The sale is going to happen without him being registered, so he'd still get the proceeds as a result of his share, but when the solicitor is drafting the covenant to make sure they can still access the land they're drafting it so that the buyers have to grant the sellers a right of access (a reservation of the right to use the land) and as your DH isn't technically a seller that right won't extend to him?

My property law knowledge isn't that hot so I'm not sure about whether beneficiaries can benefit from a reservation of an easement. If your solicitor is so adamant it can't happen have they discussed registering your DHs title over the land before its sold? That would make the problem go away, although you'd need to pay a fee for it.

There are clearly a number of complexities involved here and it is usually important to separate the legal estate/ownership (the land/property) from the beneficial one. The land register deals primarily with the former so the beneficiary's interest may not always come into play when dealing with the sale/rights etc.

He will still have an interest but it is largely separate from the registration aspects and I suspect this is what your solicitor will explain.

Taking the sale on it's own if there were 3 registered (legal) owners and one has died then you have 2 surviving owners who can then deal with the title. The deceased's executors are not involved in the legal aspects of the sale.

Pookamoo rightly refers to the fact that how they held the title can impact but the tenants in common aspect will invariably only click in when you are down to just a sole legal owner and in this case we still have two

So the buyer will only need to deal with the surviving brothers and any purchase monies would be paid to the solicitor and the two brothers would then take receipt. After that the beneficial estate clicks in and your DH would have a claim on his/the deceased's share of those monies. That is how the beneficial estate is quite separate from the legal estate.

With regards the right of access you refer to if you are referring to a legal easement, namely a right of access which is being written into the Transfer being used to sell the land, then it runs with the land and are not personal to the 2 brothers + DH.

If there is to be a legal easement whereby land owned by the 2 brothers + DH needs the benefit then this needs to be made clear in the Transfer. If DH owns benefiting land then he should be a party to that Transfer

However you mention a licence so I suspect this is quite separate from a legal easement and is simply a deed giving the brothers a right of access so it is personal to them and ends when they die. It would not attach to any land/property they own but simply give them a right of access as and when they wanted it. If your DH also wants that licence then he is no different to anyone else and could presumably be included.

So on the face of it the actual sale by the two surviving brothers is being handled quite correctly.
The wider issue re the right of access seems to be the one on which you need some greater clarity from the solicitor involved