Thought joint tenants land registry doc says tenants in common *help

[Kerryco]

Hello

Purchased house with partner 15 years ago, we were not married and this was second home we had had purchased together we had been together 40 years when sadly she died in January this year after a short ilness, I was and am very lost without her, she did everything for me, her brother helped me sorting all the paper work, helping to deal with employees - pensions, bills cancelling direct debits etc etc, when we finally came to the house- which I always thought would pass to surviving partner (joint tenancy) , her bother and I even found copies of something witnessed which had it as joint tenancy, however a mortgage advisor looked and said land registry has it down as tenants in common, he contacted solicitors to check but said they said no longer held files due to time passed. I think it was a mistake I am 10 years older and we always thought I would have gone first and house would pass to her, but where do I even start if there is no longer the original paper work, I get on well with my partners family and parents however I know subject is going be very difficult to broach as this time and although I know I will probably have to speak to a solicitor at some point but I really would like to find out more before. I mean is it possible solicitor's made a mistake? would land registry hold anything that might shed light on this being a mistake, I found it amazing that the land registry documents doesn't even mention clearly tenants in common or joint tenants, how would a member of the public looking even know either? so I would appreciate any ones advice on this.

Kind Regards

[pochisoldi]

Get yourself a copy of the land registry entry for the property. (£3 from the LR website).
If the property is show as owned by two people and has
"RESTRICTION: No Disposition By A Sole Proprietor Or The Registered Estate (Except A Trust Corporation) Under Which Capital Money Arises Is To Be
Registered Unless Authorized By An Order Of The Court’."

then it's tenants in common.
No restriction = joint tenancy.

For what it's worth, you can get the name of a deceased joint tenant removed at nil cost (save for the cost of a death certificate or getting a certified copy) using Land Registry form DJP.

[Clitheroekid]

... her brother and I even found copies of something witnessed which had it as joint tenancy, however a mortgage advisor looked and said land registry has it down as tenants in common ...

Firstly, my commiserations for your loss. I can understand how much stress this must be causing you at such a difficult time.

The way it works in practice is that when you buy a house the transfer is recorded on a form called a TR1. You can see a sample in this list of forms - https://www.legislation.gov.uk/uksi/199 ... ule/2/made

As you'll see, box 11 gives 3 options. Your solicitor ticks the box to indicate whether you intend to own as joint tenants, tenants in common or on some different trust arrangement.

In theory, you both then sign the TR1 to confirm this - I say `in theory' as in many cases the form is never signed by the buyers, particularly nowadays when so much conveyancing is carried out remotely.

I suspect this is the document you're referring to as "something witnessed which had it as joint tenancy". If so, and the joint tenants box is ticked, then that's a positive start.

As pochisoldi has said, you need to obtain a copy of the title to the house from the Land Registry - https://www.gov.uk/search-property-info ... d-registry - and check if there's a Restriction registered. If there isn't, then you can relax, as the property has been correctly registered as joint tenants, in which case you are now the sole owner.

If there is a Restriction registered then there are two possibilities. One is that the Land Registry have made an error, which is entirely possible. The other (which seems unlikely) is that the joint tenancy has been `severed' at some stage. This means that one of you took the decision that you no longer wished to own as joint tenants.

What needs to happen in that case is that one co-owner delivers a `Notice of Severance' to the other. They then record the severance by registering a Restriction at the Land Registry.

However, as I said, this seems very unlikely. You obviously didn't do so yourself, and you'd have known if your partner had done so as you'd have received the notice.

Hopefully, therefore, it's a Land Registry error, which should be fairly easy to rectify.

Please let us know the outcome.

[Avantegarde]

Did your late partner have a Will? And did it direct her share of the property to you? If there is a Will, and you are the inheritor, this should ease your apparent administrative problem (I would haver thought).

[chas49]

Did your late partner have a Will? And did it direct her share of the property to you? If there is a Will, and you are the inheritor, this should ease your apparent administrative problem (I would haver thought).

I *think* the issue is that IF the property is/was held as joint tenants, it doesn't matter what the Will says - the share automatically passes to the survivor regardless of the Will - it never forms part of the estate.

[Avantegarde]

Really? It may pass to the other joint owner, regardless of the Will, but it surely cannot escape being taken into account for IHT purposes? I thought that only spouses could inherit assets free of tax.

[Lootman]

Really? It may pass to the other joint owner, regardless of the Will, but it surely cannot escape being taken into account for IHT purposes? I thought that only spouses could inherit assets free of tax.

Correct. Assets held jointly bypass probate, and may entail that no probate is needed at all. In that case IHT should still be determined but that would happen outside of probate i.e. by voluntarily contacting HMRC.

[swill453]

I *think* the issue is that IF the property is/was held as joint tenants, it doesn't matter what the Will says - the share automatically passes to the survivor regardless of the Will - it never forms part of the estate.

Really? It may pass to the other joint owner, regardless of the Will, but it surely cannot escape being taken into account for IHT purposes? I thought that only spouses could inherit assets free of tax.

I don't understand the use of "Really?" in the above. Avantegarde's post isn't contradicting chas49's, both are correct, speaking of different aspects

Scott.

[swill453]

In that case IHT should still be determined but that would happen outside of probate i.e. by voluntarily contacting HMRC.

Interesting use of "voluntarily"...

Scott.

[Lootman]

In that case IHT should still be determined but that would happen outside of probate i.e. by voluntarily contacting HMRC.

Interesting use of "voluntarily"...

I feel sure you knew this, but what I meant by "voluntarily" is that it is normally the probate process that triggers the determination of any IHT due. In the course of that the probate office will notify HMRC of any potential tax issue.

In a case where IHT is due but probate doesn't happen then that notification, determination and collection of tax also does not happen. Instead whomever is handling the estate would need to contact HMRC to initiate the determination of tax due.

Quite what happens if there is nobody handling the estate, because the assets transfer automatically, is another matter. I assume then it would be up to the beneficiary to contact HMRC. How often that happens in practice might be an interesting question.

[Kerryco]

Just update looked and copy of document I have is the solicitors joint tenants tenure and joint beneficial tenants is ticked on that, but it is just a copy.

Thanks

[Clitheroekid]

Have you obtained a copy of your title documents yet?

[Kerryco]

Hello yes I did and it does have the

"RESTRICTION: No Disposition By A Sole Proprietor Or The Registered Estate (Except A Trust Corporation) Under Which Capital Money Arises Is To Be
Registered Unless Authorized By An Order Of The Court

I am contacting land registry to regarding TR1


Thanks

[Clitheroekid]

Hello yes I did and it does have the

"RESTRICTION: No Disposition By A Sole Proprietor Or The Registered Estate (Except A Trust Corporation) Under Which Capital Money Arises Is To Be
Registered Unless Authorized By An Order Of The Court

I am contacting land registry to regarding TR1s

That seems very odd, as it appears to contradict what's in the TR1.

Have you asked LR to let you have a copy of the original TR1 as lodged with them (assuming they've retained it)?