Property Owned As Tenants In Common

[iloveglee]

I am looking for advice for a friend of mine.  Her husband just died recently, and her son, who she does not usually see much of, has stepped up to help her through all the paperwork, funeral etc.  Her husband was quite controlling, and never included her in these kind of things.  

The house is held as tenants in common, and she would like to sell it and downsize.  Her son has told her that due to the ownership of the house it would be 'inappropriate' to sell it.  She doesn't know what that means, and after she told me, I don't know either.  

Myself and my husband own our property in the same way.  We each have a will, leaving our  own share in trust to the children, until the second person dies. I assumed that this is the way it's done, and I could sell the house if I was the person left (and vice versa), as long as the value of the other person's share is protected.  Now I wonder if I am wrong about this. 

[barry1010]

It means that ownership has passed entirely to her and there is absolutely no reason why she should not sell it

[barry1010]

Property owned by more than one person is owned either as joint tenants or tenants in common.

Where there are two people the couple own the whole property together. When one dies ownership automatically passes to the survivor.

If they are tenants in common they each own a share, unless specified it is half each. So he could have left his half to his wife, his children, to charity, whoever he liked.

As it is, there is no legal or moral reason to deter her from selling.

 

[barry1010]

She should notify the Land Registry and get her late husband's name removed from the Title Register 

[furrypusscat]

The Title Deeds will show how the property is divided or a Severence Document to prove the percentage of ownership each has.

Barry, I believe if it was to pass entirely to the other half it would be 'Joint Tennancy' not 'Tennants in Common'.

[barry1010]

In my post at 14:47 it should read

If they are joint tenants, where there are two people the couple own the whole property together. When one dies ownership automatically passes to the survivor.

[DDIL]

Found on the intranet, which appears to go against what Barry is saying

Tenants in common is a type of joint ownership where each person has a separate share of a property: 

Tax implications

Each owner is responsible for their own tax liability, such as Capital Gains Tax (CGT), Inheritance Tax (IHT), and Income Tax on rental income. 

Ownership

Each owner has a distinct share of the property, which can be equal or unequal. For example, one person might own 70% while another owns 30%. 

Decision making

Each owner can act independently when making decisions about the property, such as selling or mortgaging their share. 

Inheritance

When one owner dies, their share does not automatically pass to the other owners. Instead, it passes through the deceased's will or according to the laws of intestacy. 

[furrypusscat]

Yes Barry, as Joint Tennants it does automatically go to the surviving owner but not Tennants in Common.  There should be a restriction on the deeds confirming that which gives protection to the person who has passed away when they have left in their will their half of the property to whoever they wish.

[Maydup]

Her son is correct, she needs to check the will to make sure he left his half to her before she proceeds. If he has left his half to anyone other than her then I can't help with what happens next sorry.

[iloveglee]

She certainly does need to check his will.  He doesn't need to have left his half to her for her to be able to do anything with it. Indeed that would have been a waste of time and money changing to tentants in common.  They might as well have left it as joint tenants then she would have automatically inherited it. 

Depends if he has left his half outright to someone else or in trust.  If he has left it outright, that would leave her as owner of half, and the 'someone else' as owner/s of the other half. 

If he has left it in trust to someone else, then I am not sure, I was always under the impression, as in our case, that the house could be sold upon one death, but that person's share has to be protected somehow.  How this would work, I'm not sure. 

I can't see a scenario where you'd not be allowed to sell your share of a house, suppose you had to go into a care home, then maybe you'd have to.  But then again, who is going to buy half a house!!  

[Maydup]

It seems such an odd thing for a married couple to have done doesn't it? 
who would leave their other half with any uncertainty about the house?

[chelle7272]

Some advice here;

https://www.beswicks.com/legal-advice/what-happens-one-tenant-in-common-dies/

 

[DDIL]

My cousins have had this issue (in Belgium)

Father died and left the house to his wife and 2 daughters.  1 of the daughters wanted her money now and was not willing to wait and went to court to force a sale - either her mother and sister could buy her out at market value or they sell the house and split the proceeds.

Its took 6 months but the judge agreed the house could be sold and the proceeds split.  Luckily it was not the mother's main residence.

[furrypusscat]

I disagree Maydup, if there was a previous marriage and children for example then having a 50% share or a share of any amount can be left to their children which would make it fair. That's why we make wills to make sure that what we own be it property or money goes to whoever we want to leave it to.  Just because you are married it doesn't mean to say that both parties want the same thing.

[iloveglee]

I'm very unsure what is/has gone on here.  It was the word inappropriate, in terms of her selling that floored me.  It hardly carries weight in law does it.  

Shes partly to blame, she just let her husband  get on with things like that and never got involved.  Having said that, he was one of those type of men who say you don't need to worry your pretty little head about this, I will deal with it.  And she let him. 

If I was her, I'd be consulting a solicitor, and leave the son out of the equation for now. He is I think a bit like his father, I know how to do everything, leave it all to me kind of thing.  Which is kind of nice when your head is all over the place, and he has travelled to her home several times to organise things, he does live quite a distance from her.  However, going forward you have to be able to work things out for yourself, and the kindest thing he could do for her, is to include her and explain it all. 

She tends not to say anything, doesn't really understand what's going on, but then asks her friends for advice.  Which is difficult because we don't really know all the details. 

[DDIL]

Perhaps the husband left his share to the little seen son and thats why the son said it was 'inappropriate'.

The only way she is going to get to the bottom of this is to get a copy of the will.

[iloveglee]

It's possible he could have left his share outright to their children. But even then, does that she is legally unable to sell it. Inappropriat hardly cuts it does it. But yes, without knowing what the will says she can hardly proceed. 

[New Judge]

"It was the word inappropriate, in terms of her selling that floored me"

Quite so, "inappropriate" is the wrong word. "Impossible" is better. She cannot sell it if he has left his half to somebody else. It isn't hers to sell.

If they were tenants-in-common he can leave his half to whomsoever he chooses.If he does, she will have to negotiate with that party and either buy their share, sell hers to them or the entire property will have to be sold and the proceeds split.