Clause on land certificate.

[Sarahmor]

My mother passed away in November and my sister and myself were left her half of the house so my sister and myself own 25% each and our father owns 50%.
The house is 80 years old and we have each been given a copy of the land certificate today with all 3 names on it.
We have noticed a clause on the certificate saying no sale, transfer, charge to placed on the property or alteration without the consent of all tenants in common.
I think this may have been written before councils started selling homes to pay nursing home fees.
If Dad has to go into a nursing home would this clause prevent the council selling or taking a charge over the property.

Sarah

[MartinBev58]

Hi Sarah

There is the same clause on the land certficate which the house my father and myself owned as tennants in common and I think it was copied over from the title deeds to the land certificate as the land was not registered at the time the house was built.
My father passed away in December and the house has now gone into my sole name. My father never went into a nursing home.
I have spoken to the neighbours about the councils powers to sell a property in view of this clause and nobody knows the answer as nobody on our little estate has been in a position where the council wanted to sell the property to finance nursing home fees.
I know as I was a joint owner of the property and also occupied it if my father had gone into a nursing home the value of the property would have had to be disregarded ( Age Concern Factsheet 38).
I also know the council can not take your and your sisters share of the property even if you do not occupy it.
I do know that there was also a clause on the land certificate saying when the garden wall is replaced it has to be built of a stone which is no longer available.
A car crashed into our wall a few years ago and the wall was a write off.
The insurance company arranged to have a wall built in a similar but not the same type of stone and a neighbour objected.
The matter went to court and the court ordered the wall to be built using the stone which was available.
I am just wandering if the court could overide the clause on your land certificate in the same way.

Martin

[tonywiltshire]

As tenants in common the clause on your title deeds is quite normal in the situation you describe, the upper limit of capital is £23,250 over which you are expected to fund the cost of care fees yourself, the lower limit is £14,250 below which you do not necessarily make any contribution. With the upper limit being so low almost anyone owning a house would be required to pay, there is no law which says you have to sell your home to pay for care fees but for many people this is the only possibility, which can seem very unfair.
Anyone in this position should speak to a solicitor over setting up a trust, which can also have advantages with inheritance tax, it could be money well spent.
Yes Martin, a court can override the clause and grant an order for sale

[Boxley]

Hi Sarah

I can only agree with what Martin and Tony has said.
Martin I am sure I saw in some other thread you were widowed as well.
They say women outlive men but it does not seem to be the case on this site at the moment.
Going back to Sarah's situation if you find yourself living with your father if he has to go into a nursing home do not let social services con you.
The house my father and myself owned and I have now inherited has 5 bedrooms and 2 bathrooms.
The social worker said I would have to downsize to release funds for my fathers care as the house was an unreasonable size for one person.
By law this was not the case.
I think the social worker was just annoyed the house was worth about £650,000.00 at the time and my father only had about £18,000 in savings.

[MartinBev58]

Hi Boxley

You are right. I am widowed.
I can see the Social Workers point about 1 person living in a 5 bedroom house.
I also think in some ways it is unfair if the offspring lives in and owns half the house through inheritance as a tenant in common and the parent has to go into care the offspring can inherit all of the house even if it is a 30 bedroom mansion
My father and myself owned a 4 bedroom detached house and 1 would have not given that up so I do not see why you should.

Martin

[Mickiee]

If a property is held as Tenants in Common the percentage share held by the owners, upon death, goes to the deceased's estate and NOT to the surviving owners. So if either yourself, your Sister or your Father die, then her or his share will be distribued as requested in a Will if made. It will not automatically become the ownership of the survivors. Hope this makes sense.