Title deed - can anyone explain this restriction please?

[kavvYourselfAMerryLittleXmas]

Hello, I’m on the hunt for someone who knows about property ownership documents if possible?

My dad did a will a few years back, and I understood that he had updated the title of their property to show that he and mum were ‘tenants in common’. His will suggests that he thought both he and my mum own 50% each of their house, and he intended for his 50% to be disposed of in a particular way if he were to go first, with a clause that she would live in the property as long as she liked until she wanted to sell.

He passed away a couple of years ago, and now my mum wants to sell the house. We never did probate at the time, but now I come to look, the land registry document actually says this:

Restriction - no disposition by a sole proprietor of the land(not being a trust corporation) under which capital money arises is to be registered except under an order of the registrar or of the court.

Both their names are on the title deed document, and there’s nothing to suggest a percentage owned. The above was updated around the time he did the will, so I’m not sure if what he did was correct for what he intended, is there anyone that understands this stuff that could clarify for me?

If it just passed to my mum automatically anyway, then it will make the sale of the property infinitely easier and more straightforward. I’m very grateful for any insight that anyone can offer here, we’re in the midst of a very difficult family bereavement which has prompted the sale, and I’m trying to make things easy as possible for her.

thank you in advance for any insight

https://www.gov.uk/government/publications/private-trusts-of-land/practice-guide-24-private-trusts-of-land#the-standard-form-restrictions

This is the government guidance on the subject. Someone may come along who can explain it in plain language.

https://www.property118.com/land-registry-restriction-disposition-sole-proprietor/#:~:text=RESTRICTION%3A%20No%20disposition%20by%20a,is%20a%20beneficial%20joint%20tenancy.

This says:

If a sole owner wishes to sell the property and such a restriction is registered a second trustee must be appointed for the purpose of giving the buyer a valid receipt for the purchase price. So if a buyer's solicitor sees such a restriction registered they will require the seller to appoint a second trustee.
The Land Registry will remove such a restriction on application provided that you can show that you are now solely and beneficially entitled to the property and that no-one else is entitled to a share in any proceeds of sale. For more information see Land Registry Pratice Guide 24 para 6.2 https://www.gov.uk/government/publications/private-trusts-of-land/practice-guide-24-private-trusts-of-land#applications-cancel

I am sure by the time I finish typing this someone else will have come along with a better answer, but anyway..

FYI I am a solicitor, but not a property one.. so this is just dredging my law school memory. I am sure someone more qualified than me will be able to add to your thread.

What your Dad said about the tenants in common is correct. It means that upon his death the 50% share of the house would not automatically pass to your mother, it would pass to whoever it said in his will should get it. That is different from Joint Tenants, whereby if one joint owner dies, the other owner automatically becomes the outright owner of the property, even if a will says that 'all of my estate goes to the local cat rescue centre'.

The Restriction you have found, I believe, is designed to prevent one owner selling the property under the nose of the other one. No doubt your mum and dad's names are still listed under the Proprietorship Register. I think what that Restriction means is that one owner on their own cannot sell the property - both owners would need to sign the documentation to confirm the sale.

It sounds like the Land Registry were not informed when your father died - is that true? Otherwise the property should now be listed in the name of your mother, or, if the Will said that your dad's share of the property went to someone else - the name of that other person. And in that case I presume that the other person who owns the property must also agree to the sale, as it is actually their property.

In short - as they were tenants in common, not joint tenants, the property did not automatically pass to full ownership to your mother, unless that is what the will stipulated (which it does not sound like it did if the Will stated she had a life interest). And even if it did, I think you would need to sort out the Register to reflect the fact that your father has now died and is no longer the owner, before a sale could be sorted out in any case.

You may want to get a property lawyer to have a look at it and advise of what needs to happen to get the house in order for a sale. It should not be an expensive piece of work as I'm sure for any property lawyer it's a very straightforward and common issue.

Thank you both very much for this guidance. It’s incredibly helpful.

@Figment1982 we didn’t get round to doing probate for him as we lost him literally as Covid lockdown started and everything went crazy.

Dad listed me and my two siblings as beneficiaries of his 50%. One of my siblings has now suddenly and unexpectedly passed away and as we’d never transferred the ownership from his name, it complicates things further.

I fear that I will need to apply for probate for my dad and put it in our three names. Can I even do that if she’s not there to sign? And then apply for probate for her and put it in the names of her four children? Three of whom are under 18. Then sell it with several people on the deeds? Starting to feel a bit sick. I can see I may need to engage a solicitor to help, we aren’t well off so I’m just worried about costs with the funeral and every thing as well.

I'm so sorry to hear about your sibling, it sounds like your family has had a terrible time over the last couple of years.

I think you would be best placed to seek help from a solicitor. I don't expect that the fees will be too bad, as although it looks complicated to us I suspect for a lawyer specialised in this area it is quite a simple process.

The part of the property that did belong to your sister will now belong to whoever was listed in her will (or, if she did not have a will, whoever would inherit her estate following the rules of intestacy). So I don't think it's as simple as putting the property in your 3 names.

I would suggest laying it all out in a consultation with a solicitor, who can then provide advice on what to do (and then you may feel comfortable putting each of those recommendations into action yourself to keep expenses down).

Whilst others have tried to explain the form A/joint proprietorship restriction your latest post has moved matters on as it’s really now more about what happens next if Mum wants to sell.
Probate is not required for your late Father as the legal ownership of the property doesn’t form part of his estate.
The restriction is usually applied for when joint owners split/sever their joint tenancy and the wills you mention read as if that’s what happened.
As your Father has died the restriction clicks into play and your Mother as the sole surviving owner can’t sell it on her own - the restriction wording explains that.
However she can appoint someone to act with her and together then sell. See PG 21 section 6.
They both then take receipt of the purchase monies and that can then be shared amongst the beneficiaries and herself for example.
The key is that the wills and trust relate to their beneficial ownerships, so the value/£s and pence re the property which can be split.
The legal ownership is the actual land/building which can’t be split and which we register. Hence no % or actual shares are shown on the register. And that’s why the whole legal ownership has to always be dealt with as a whole as described.
Some posters on this forum say that’s wrong so if you remain doubtful please do seek legal advice from a conveyancer or conveyancing solicitor familiar with property and the effect of wills/trusts as well.
PG 21 explains how the sale can complete re the property as bound by the restriction and the family focus can then be on the purchase monies and how that’s then split/shared as appropriate
Hope that helps

From the previous poster:-

"Probate is not required for your late Father as the legal ownership of the property doesn’t form part of his estate."

This is incorrect. For tenants in common, such as this situation, probate is generally required.

With the executors, if one has died before applying for probate then, as long as there are other executors there is no problem at all. The remaining executors apply for probate.

Strictly speaking, if the person had died after probate was granted then you should get another grant of probate in just the names of the surviving executors

Another2cats - can you explain why probate is needed for TIC? And if it is then is it by default not required when they are joint tenants?
Why does their TIC mean probate is needed to deal with the property?

With joint tenants, they do not own a share of the property but own equally the entire property - similar to a joint bank account.

When a joint tenant dies the entire property passes to the remaining tenant(s) by what is known as the "right of survivorship". The rights of the joint tenant are entirely extinguished when they die.

The deceased joint tenant cannot pass on a share of the property in a will as they have no share in the property to pass on, because shares do not exist in a joint tenancy. In the same way, shares do not exist in a joint bank account and on the death of one person the other automatically becomes the sole account holder.

Since any rights are lost on death then ownership of the property does not become part of the estate and pass to beneficiaries via the will but automatically goes to the remaining tenant(s) by the right of survivorship and so probate is not required if the property is the only major asset.

In contrast, with tenants in common each person owns a specific share of the property. This may be equal shares or any other division that is agreed on eg 70/30.

On the death of a tenant in common their specific share of the property then becomes part of their estate and is distributed according to their will or by the Intestacy Rules if there is no will.

If there is property or land as part of an estate then probate will be required if there is a will.

When I came to sell my last house (which had been owned as TIC with my late husband, who left everything to me), my solicitor said that it couldn't be sold by me on my own, and my dad had to sign some forms. It was just a formality though, and everything went through fine.

I think anyone could have signed the forms, it was just that my dad was handiest.

I’ve just seen that there are further messages on this thread, and really appreciate the input.

Since I first posted, I’ve confirmed that this set up is definitely tenants in common, and I understand it was done so that Dad’s 50% of the house would pass to us three girls even if Mum remarried etc. I’m fairly okay with understanding that now. Mum definitely wants to move and sell the house, and I need to get all of the paperwork in a position where she can do that.

The bit that I’m still unclear on, I suppose, is how to reflect the change of ownership from Dad to the three sisters, given that my DSis isn’t here to sign for anything.

Then I don’t know how to help my eldest nephew (who I assume is her next of kin) deal with DSis’ estate - she didn’t have anything apart from that share of the house and a lot of debt, and didn’t have a will. I’m assuming that legally any debts get settled and then the remainder is split between her children?

I don’t know how to do that/ set up a trust et cetera for the younger ones, so I am seeking legal advice don’t worry! It seems complicated, and I don’t expect anyone to answer my questions for free, this is the sort of stuff that takes years of training, and I respect that. I just wondered what the steps would be, as it seems to be something that must happen relatively often.

Definitely yes, speak to a solicitor about this they will explain everything that needs to be done to sell the house.

If Mum is downsizing and the house she buys is cheaper meaning that there is money left over then the house remains split 50/50 but also the money left over is also split 50/50.

So, if your mum buys a smaller house and after all fees etc are paid she is left with, lets say, £50k in the bank from the sale of the old home then that is split £25k for your mum and £25k to be distributed between the three sisters and your deceased sister's estate. So, if there is any money then you will get to share that as soon as your mum's move is complete.

With your deceased DSis, since she did not have a will then somebody must apply for "Letters of Administration", it's like getting Probate except when there is no will.

If she was unmarried or divorced then normally this would be done by an adult child but do I take it they are all under 18? If one of the children is over 18 (your nephew?) then he will be the person whose name has to go on all the documents and he will be the equivalent of the Executor for her estate.

Of course, that doesn't mean he has to do the work or actually complete the forms, you or a solicitor can do that, but it's his signature that has to go on the forms.

If all the children are under 18 then the next person would be the deceased's parent, that is, your mum. If mum were no longer around then it would be the brothers/sisters of the deceased.

In the situation of your mum downsizing and there being money left over, if your nephew is over 18 then he will be entitled to an appropriate share of that money immediately and his siblings will have their share put in trust once your sister's debts have been paid.

However, it is not uncommon for a number of lenders to write off smaller debts. You will need to write to the creditors on behalf of your nephews/nieces to inform them of sister's death. Some may want to see the Letter of Administration so you will have to wait until you obtain that in your nephew's name (if he is over 18).

So, yes, you really do need to speak to a solicitor about all of this.

I wonder why your DF switched to tenants in common. I think most people prefer joint tenancy because the property passes to the other joint owner on death without probate and without it counting as part of the estate for inheritance tax purposes.

I guess it could be to protect your interests if your mum were to remarry, to make sure you (including your siblings) will definitely ultimately get at least half the value.

It might also be related to care homes - i think if the house is not wholly owned by your DM it cannot be taken into account in determining if she should pay for future care home costs. Plus it should not be deprivation of assets from her perspective as it was not her who gave you the interest in the property. I may be wrong on this though. If this was part of the thinking, you might want to think about it in relation to her new house. Does the will allow your share of the proceeds to be reinvested in a new house for her while she is alive or will you be entitled to your share at the time of sale.

Is the value below the IHT threshold?

Another2Cats - really interesting response re JTs and TIC impact re probate/estate etc.
The crucial thing to remember is that the legal ownership, which we register, is always dealt with as a whole. When you have joint registered owners and one dies that legal ownership passes as a whole to the survivor. That’s whether they are JTs or TIC.
TIC splits their beneficial shares so not the legal ownership. Their beneficial ownership is in effect the value of the land and property, the £s and pence.
So the legal ownership will only require probate when the surviving owner dies. Being TIC doesn’t change that.
Whilst the deceased’s beneficial share still exists the actual legal ownership doesn’t form part of the deceased’s estate. Hence probate isn’t required to deal with the property.
If there’s a form A restriction on the title then the surviving and now sole registered owner can’t sell on their own but they can appoint someone (anyone) to act with them, as maximist posts.

I'm not sure this is correct - the 3 siblings would get their 50% share on the sale of the first house - before mum bought a new one - mum only has 50% of the house sale available for her downsize purchase.

Then the other 50% is split three ways and 1/3 is the DSIS estate.

OP I'm so sorry for your loss.

@slithytoveisascientist Not necessarily. Where there are tenants in common and a trust has been created then it is usual for there to be a clause which allows the trustees to use the trust to purchase a new home for the life tenant.

However, this is usually worded in terms of "may" rather than "must". That is, the trustees "may" use the trust to purchase a new home.

But there will also typically be a clause that says in regard to purchasing a new home or not then the trustees must have regard solely to the interests of the life tenant and not to any of the beneficiaries under the will. In other words, they would have to go by what mum wants to do and not what anyone who is due to get some money in the will wants.

If there is no such clause allowing the trustees to use the money then you are correct, mum only gets 50% to buy the new house.

If there is a clause like this (which is very typical) then, having regard to the interests of the life tenant, the trustees may use any or all of the proceeds of the sale of the property to purchase a new property for the life tenant which will be held under the same conditions.

A typical clause will read something like this:-

The Property Trustees may at any time or times during the Trust Period as to the whole or any part of the Trust Fund in which the Life Tenant has for the time being an interest in possession pay out of any proceeds of sale of this property or any substituted property (purchased as a result of this clause) to purchase a freehold or leasehold property which will be held for the benefit of the Life Tenant on the same trusts to which this clause refers.

Since I first posted, I’ve confirmed that this set up is definitely tenants in common, and I understand it was done so that Dad’s 50% of the house would pass to us three girls even if Mum remarried etc

How have you confirmed this?

If your parents bought together jointly they would have been joint tenants. If you want to convert a joint tenancy to a tenancy in common, there is a formal process you have to go through to severe the joint tenancy. It's not just about saying that it what you want. If your father made a will via solicitors to address this change, it is likely he would have been properly advised and he did severe the tenancy but you do need to confirm the formal steps were followed.

https://www.gov.uk/joint-property-ownership/change-from-joint-tenants-to-tenants-in-common

Thank you. What I mean by confirming it, is that it is definitely what he said he wanted to do, and the clause was added to the land registry document at the time he got the advice and wrote his will.

So it looks like he wrote off to have it set up as tenants in common, and the dates add up. They will have been joint tenants before that. My mum is in agreement that is what he intended.

He didn’t make a will via solicitors. This is actually another problem because I have a copy of the will, but not the original. It now transpires that in the last year, DSis was house sitting DMs house during a bipolar episode and did a huge and random declutter and threw out a lot of paperwork.

We now think DSis must have moved or thrown out the original will because they can’t find it. I am at my wits end with the situation and grieving as well, it’s just too much.

And there isn’t a trust or anything. It is literally just what it says on the land registry document, the copy of the will so we know my dad’s wishes, but no actual will right now (I only found this out yesterday)

Sorry you've had such a stressful time OP .. I am, however, very grateful to you for making this thread and to the PPs advice - I'm at risk of creating the same situation that you've had to deal with bc the home is only in my name and I'm keen to sort out for DH so I need to do this.

@kavvYourselfAMerryLittleXmas That is a really horrible situation to be in. As you tell us more, it's all getting so much more complicated.

If I can reply to some of your comments:-

He didn’t make a will via solicitors.

Do you mean he just wrote the will himself??????????

That leaves things open to all sorts of problems.

If he wrote the will himself (and it has been properly signed and witnessed), you really do need to find a solicitor to work out just what sort of a mess he has left behind. If he got a will writing service to do it for him then it may or may not be reasonable. Some are very good indeed, others not so much.

But, do just check that it is a valid will. It must be signed by him and also signed by two witnesses. If he did not sign it or there are not two witness signatures then it is not a valid will. In that case, he has died intestate and the Intestacy Rules apply. In this situation, your mum gets the first £322,000 and then shares anything above that amount 50/50 with the children.

This is actually another problem because I have a copy of the will, but not the original. It now transpires that in the last year, DSis was house sitting DMs house during a bipolar episode and did a huge and random declutter and threw out a lot of paperwork.

We now think DSis must have moved or thrown out the original will because they can’t find it. I am at my wits end with the situation and grieving as well, it’s just too much.

...the copy of the will so we know my dad’s wishes, but no actual will right now (I only found this out yesterday)

One small piece of good news, that is not a problem at all. It is not unusual at all for the original of a will to be lost, for whatever reason, but that a copy still exists.

A copy of a signed Will can still be used in an application for Probate. It cannot be a draft or a copy which is unsigned. It must have his signature and also the signatures of the witnesses.

If the original cannot be found despite your best efforts then you can submit a copy for proving in order to get Probate. This is done under the Non-Contentious Probate Rules 1987 (NCPR 1987), Rule 54:

https://www.legislation.gov.uk/uksi/1987/2024/article/54

You must submit an affidavit (this is a statement of what happened which you affirm is true in front of a notary public) explaining why it is a copy rather than the original is being submitted in the application.

The Probate Registry will consider the circumstances surrounding the application, and decide whether or not to issue Probate or make further enquiries.

In this case, exactly what you said about your sister (it may be that your mum might be best placed to write this as it was her home), along with any medical evidence you have that she was bipolar, would likely be sufficient to explain why you only have a copy and not the original.

You say that there is no trust in the will. By this do you mean that there is nothing that says your mum is a "Life Tenant"?

If this is the case then you and your sisters could go to court and get an order for the sale of the house and kick your mum out, if the court agreed with you.

I presume you don't want to do that.

And there isn’t a trust or anything.

In that case, as long as it's a valid will then between the two living sisters and deceased sister's estate you own 50% of the home and your mum owns the other 50%. At the end of the day, it is up to you all how you want to work this out.

If you did decide to sell the house then, strictly speaking, mum is only entitled to 50% of the proceeds. The rest is divided up between the two sisters and the estate of the deceased sister.

However, there is nothing to stop the sisters agreeing to contribute some of their 50% towards mum's new home.

Here are a couple of examples. The current house is worth £400k so that's £200k for mum and £200k for the children.

Mum buys a new house which including all fees etc for the sale and purchase (eg stamp duty etc) comes to £300k.

Now you might decide to share the cost equally with mum. So mum pays £150k and the children also pay £150k. This leaves mum with £50k in the bank and the children with £50k in the bank which is then distributed to the two living sisters and the estate of the deceased sister. In this case, you will all be tenants in common in the new house with mum owning 50% and each sister (or her estate) owning 16.6%

Alternatively, for example, you might think that's too much money and insist that mum pays £200k and you will top it up to cover the full £300k cost.

In this case, mum uses her entire £200k towards the purchase of the house and the children only contribute £100k, this will leave the children with £100k in cash to be distributed to each sister (or her estate).

In this case, again you will all be tenants in common of the new house, but mum will own 66.6% and each sister will own 11.1%.

If there is no trust set up with any sort of rules governing what should happen then it really is just up to you what you want to do with the money. You are quite open to helping your mum buy a new house - or not, as you wish.

Also each sister may have a different opinion. If there is no trust set up in the will then each sister (or your nephew if he is over 18) is free to do whatever they want with the money and are not obliged to contribute any of their share to your mum's new home.

Totally understand how stressful this is for you and a missing will can always add to that.
But it reads as if you are all in agreement as to what his wishes were, Mum wants to sell so the ‘trust’ created by their severing their joint tenancy comes to an end when she appoints someone else to act with her and they sell.
The issue then is what you all (Mum and his beneficiaries) do with the purchase monies so the split is honoured and she buys a smaller property on her own.
So any stress presumably relates to other things in the will that can’t be confirmed? Or the split of monies after selling? Just asking not to add to your stress but to try and allay your fears re the property.

@Another2Cats thank you for your comprehensive reply. It is very much appreciated.

I keep hitting ‘reply’ but it doesn’t seem to be referencing your comment so apologies if I miss anything you asked.

Dad’s will, when written, was ok in content. He had help from someone who (ironically) worked in the probate service at that time. He messed around with it to add in various bits and wishes in terms of funeral arrangements, but the last version dated 2015 was signed and witnessed and signed by two witnesses.

The copy I have is not signed, so in theory I could have written it myself. It is just a printed copy of the latest version. On my copy it says something like ‘for the avoidance of doubt this will consists of one page of printed A4 front and back signed on the back’.

I do have a photograph of the front of the original will, DM sent it to me during Covid lockdown to clarify some particular point of content regarding the funeral, but the photo doesn’t show the back and that’s where the signatures are. I know who witnessed it but I still don’t know if that’s enough for them to reconstruct the will.

The main thing we want to do is sell the house. Then the half that belonged to DF can be distributed as he and DM wished/wish.

@LandRegRep1862 thank you also for your reply and the advice. I appreciate it.

‘Mum wants to sell so the ‘trust’ created by their severing their joint tenancy comes to an end when she appoints someone else to act with her and they sell. ‘

Does that mean that she can just mark anyone to act with her?

‘The issue then is what you all (Mum and his beneficiaries) do with the purchase monies so the split is honoured and she buys a smaller property on her own. So any stress presumably relates to other things in the will that can’t be confirmed? Or the split of monies after selling? ‘

I think the stress (for me) is around -

a) if we find the will, doing the probate and paperwork correctly for DF to then pass the correct share to my late DSis to then pass to her DC.
b) if we don’t have the will, how we do the probate and help DM to be able to sell the house with the tenants in common clause still active.

It sounds like it may not be as complicated as I thought as the amounts are under thresholds. I’m awaiting a call back from a probate and land solicitor just to make sure I’m doing it correctly, but I’m eternally grateful for the advice given on here.

If it just passed to my mum automatically anyway, then it will make the sale of the property infinitely easier and more straightforward.

...

b) if we don’t have the will, how we do the probate and help DM to be able to sell the house with the tenants in common clause still active.

Ironically, you may be in a better position if you can't find the will - depending on what you want to happen.

If there is no will then your dad died intestate and the Intestacy Rules apply. In this situation the first £322,000 of his estate goes to your mum and then anything over that amount is split 50/50 with the children.

So, if the house is worth less than £644,000 then everything goes to mum (if the house is worth £644k then dad's 50% share is £322k, all of which goes to mum).

If this is what everyone wants to happen (including ALL the beneficiaries and your mum) then the easiest thing may be to say that you cannot find the original will.

In this case, your mum would apply for "Letters of Administration" and become the Administrator of your dad's estate. The administrator is basically the same thing as an executor for when there is no valid will.

https://www.gov.uk/government/publications/apply-for-probate-by-post-if-there-is-not-a-will

Your mum can apply online (link above).

In order to sell the house the land registry are simply looking for two names. So it can be your mum and anyone else.

In contrast, if you're concerned that mum might remarry, move in with another guy and leave everything to him then you might not want to do this.

Also, if there is any chance that mum might end up in a care home in later life then you also may not want to do this. In that situation if the children retained dad's share of the home then that could not be taken for care home fees.

So, if everyone really does want mum to inherit everything (up to £322k) then the best course of action may be just to say that you cannot find the original will and follow the intestacy rules where mum gets the first £322k.

If mum is downsizing then she may wish to gift some of the excess cash after the sale of the house to the children, especially if the children of your late sister will be in particular need

If there are other concerns (eg disinheriting the children, or the possibility of large care home fees) then it would probably be worthwhile still making an application for probate even though you don't have a signed copy of the will.

Although, without it being signed it does make it more difficult. Perhaps if you also get affadavits from the witnesses that this was the will that they witnessed?

I'm not in any way recommending any course of action, just suggesting a couple of alternatives.