Do sellers need to change title deeds before we can purchase?

[That70sHouse]

We are buying a house from an older gentleman who has gone into a care home. His wife died about 5 years ago. Our solicitors have said that both husband and wife are still named on the deeds and they owned the house as tenants in common. Therefore our solicitors are saying that the vendors solicitors need to apply to the land registry to have this changed, and for the husband to be the sole owner on the deeds, before we can exchange (and then contact land registry again post completion to change it to our names). However the other solicitor is saying that this can all be done in one go after completion when they contact the land registry, because the husband is still alive. We will be due to remortgage in October and our solicitors say that if we have a complex paperwork post completion that it may prevent us from remortgaging. Current estimate for the title deeds to be changed from husband and wife to just husband are 12 weeks 😒 who is right?

Sounds ridiculous- different circumstances but when I bought my ex out of the house his name was on the deeds ( then re into mine and OH name) but there was a substantial wait for the document to come through as they do have a massive back log ( and then they were wrong and had to go back) but it didn't hinder us buying the house it was done as part of the process!

Hopefully a solicitor will come along and give a legal perspective

I thought that they needed to provide a death certificate to your solicitor to prove that she's passed away, that should be enough for the mortgage & land registry to be going on with surely?

Yes they have provided the death certificate hence why their solicitors are saying that is sufficient to be able to just contact land registry once and only once upon completion.

Not a solicitor, but if the house was owned as tenants in common the surviving husband only owns 50% of the house - whoever the deceased wife left her share to in her will owns the other half. This may well be the husband, but the will would definitely be key in this instance.

That sounds right. I don't think she's coming back from the dead

What flotsom said. Also once the application has been submitted to the Land Registry the solicitor can request that it's expedited as it would delay the sale and LR usually turn it around in a few days then

Yes this is a good point. I assume the owner is now just the gentleman although they only swapped to tenants in common from joint tenants about ten years ago which makes me wonder whether they put a trust into the will so that at least half of the proceeds of the house could be protected from being used for care costs. In which case the trust should have a charge on the deeds, and I guess if it didn’t, that might cause the vendors issues in terms of inheritance..

"I assume the owner is now just the gentleman..."

I would certainly not assume that. In fact, he most likely isn't, otherwise that would defeat the purpose of doing this.

As you say, it does sound as though this has been done to limit care home fees.

In this situation, as a pp said, the old gentleman will only own 50% (or any other percentage that might be written down somewhere) and the other 50% is held on trust for whoever is named in the will of the wife who died.

In reality, the owners of the house are both the old gentleman and the trust fund that holds the 50% of the house from the deceased wife.

Where a house is owned as tenants in common then a person can sell their share of the house to someone else. In this situation, if you are just buying from the old gentleman then you are just buying his 50% of the house, you are not buying the other 50%.

Whoever is the trustee of the trust holding the other 50% has to also agree to sell the house.

It may well be that it is the trustee of the trust who is arranging this sale now that this person has gone into care, but they need to sell you their 50% as well as the old gentleman selling you his 50%.

You do not want there to be a defect on the title deeds as this can cause issues when selling. First solicitor is correct imo.

Your solicitor is crap. This is basic stuff.

They need a death certificate, then to appoint a second trustee to overreach (remove) the restriction on the title that shows the property is owned as tenants in common. This would typically be a solicitor at the firm the seller using. The trustee is appointed by adding clauses to the contract and transfer. The new trustee signs the transfer.

This isn't hard to do at all. I did this for my mum when my dad past you just do it online. Took 5 mins.

As @MinnieMountain says it is your solicitor who is incorrect. It is all dealt with in the contract and transfer documents and by submission of a death certificate. Any attempt to change the title ahead of exchange would actually hold matters up.

Thank you, the vendors solicitor is doing exactly what @MinnieMountain has said and is appointing a second solicitor to overreach the restriction. They say they cannot just remove the restriction. Our solicitor says this is incorrect and they are now refusing to proceed with our purchase on this basis...! Looks like I'm on the hunt for a new solicitor.

*appoint a second trustee, not a second solicitor!

Who inherited his late wife's half of the house? Has your solicitor had sight of her will?

That’s no concern of the buyer’s solicitor in this case @whaddayawannado .

I’d have a word with your solicitor’s supervisor OP. I’ve never heard of anyone practicing residential property and not understanding like yours is.

@MinnieMountain ive done this and they’ve backed up the solicitors. As a company they say they’re unable to act on my behalf if I want to proceed with the sale and if the vendors position doesn’t remove the restriction 😮

And it’s funny because my solicitors asked who has the beneficial interest passed onto and their solicitor replied and basically said that’s none of your business, all you need to know is that there is now a sole proprietor and the restriction still stands but the appointment of the second trustee means that we are compliant with the restriction.

That’s hilariously bad OP.

If your seller’s solicitor has a second office, they might be able to act for you. At least they know what they’re doing.

Please PM me with the name of the firm 😁

Yeah, that’s a shockingly bad response by your current solicitors. Overreaching is a standard solution in this situation. Is it too late for you to instruct another firm?

We sold my mums house last year. It was jointly owned by both my parents but we only had to provide the death certificate to our solicitors

I'm totally confused. If the sellers solicitor won't disclose who owns the other 50% then why would buyers solicitor take it on good faith that it's a trust and can be sold by the husband? The 50% belonging to the wife could have been willed to a living relative who doesn't want to sell. If this only becomes apparent say completion it'll be a right old mess.

We did this last year when making new wills. The Solicitor said there was no need to change the deeds upon first death unless the surviving spouse moved house.
I would have thought that the death certificate and will would be sufficient upon sale.

There's a big difference between it being jointly owned (where the survivor will automatically inherit on the death of the first party) as sounds like was the case for you, and it being owned as tenants in common, where each party owns 50% and can will their share to whoever they want when they die, as in the OPs case..