Conveyancing

This appears to me to be a simple question but there does not appear to be a simple answer. if there are 2 transferees and box 11 ( the declaration of trust box) has an x against beneficial tenants but the transferes have not signed the TR1 and the solicitor had no instructions from either party as to how the property was to be held, is the declaration entered valid on the transferees. it states quite clearly on the the TR1 that if box 11 (a declaration has been entered)has been completed then the transferees must sign. On the land registry website there are instructions for completing the TR1, which states that if box 11 (a declaration has been entered) has been completed then the transferees must sign.Having spoken to various barristers and solicitors, there does not appear to be a definite answer as to whether it needs to be signed although to me it either has or it has not, there can be no in between. Also surely both transferees would need to convey their wishes to the conveyancing solicitor.

In what circumstances did the

In what circumstances did the transfer arise.

Profile: retired barrister legal adviser with MOJ.

conveyancing

Various properties were bought from auction with joint names on the contract. There was no discussion with the solicitor as to how they were to be held sharewise as one party contributed the majority of the funding, instead they have been entered as beneficial tenants in common in equal shares and this seems to be a binding document, but as said previously not signed or with either parties knowledge. Obviously the party who put nothing in is not complaining

That's the legal assumption

That's the legal assumption if there's no deed of trust specifying different proportions. ( So if the declaration hasn't been completed properly the assumption kicks in).

If there should have been then the dissatisfied tic will have to sort it out with the other tic.

So for example if its obvious that one party paid 3/4 and therefore should be registered as 75% it should be easily fixed by a new TR1.

If the other party refused then they can be told its a simple process to start a court case ( and assuming the evidence is there they'd get hit for costs). You're also right in that the solcitor should have clarified instructions.

Profile: retired barrister legal adviser with MOJ.

conveyancing

The other party wants half based on a form that neither of us has seen or signed, although he put nothing in. Surely the TR1 cant be valid if it has not been signed by both parties. i think it comes under s53(1)(b) of the LPA 1925.

There's confusion and

There's confusion and inconsistency here.

Box 11 is not the declaration of trust.

That's box 10 and the word beneficial does not appear.

Also if neither of you have seen the form how can you know what's been ticked.

It sounds to me as if part 10 has not been completed.

 

Profile: retired barrister legal adviser with MOJ.

These tr1's are between 8 to

These tr1's are between 8 to 10 years old. Box 11 is definitely the box with the declarations in, perhaps the form has changed. Having checked this is the case as the ones in 2006 are box 11 and in 2010 its box 10. We have seen the form now because the party who put nothing in wants half, and his barrister and solicitor have advised him that he has a very good case because of the TR1. My barrister tells me i have a good case, who is correct.

 

It helps when seeking advice

It helps when seeking advice if important information is not omitted.

As to who is more likely to win that's a matter of evidence - and I don't know what there is.

If you can prove that the other party paid nothing and if there's other evidence of intention regarding share - you may succeed.

But the legal presumptions are against you.

Is there evidence with the solicitor who did the conveyancing of instructions.

Profile: retired barrister legal adviser with MOJ.

I have spreadsheets and

I have spreadsheets and emails from the other tic confirming my investment, the rate of interest to be applied. Why do i have to fight back against a document that until last month i had never seen or agreed to. There are no conveyancing files available as they were destroyed after 6 years. I am still in the dark as no one seems to be able to confirm whether a legal document can be valid if it has been filled in by maybe a solicitors clerk, the solicitor or someone else without being agreed and signed by the transferrees

Many legal documents are

Many legal documents are legal if signed by a solicitor on behalf of a client.

And its also why there is  often a presumption - if things aren't filled in - the law takes a default position. In this case equal shares.

Whether this particular one will prove to be is an issue for a court if no agreement is reached.

Its pretty obvious that the issue arose at the time of transfer as a result of unclear instructions or instructions not followed.

As you've got some evidence its really a case of interpretation.

And of course the obvious although uncomfortable question is why you had not seen ( or asked to see) it at the time of transfer.

 

Profile: retired barrister legal adviser with MOJ.

Until this issue arose, i had

Until this issue arose, i had never heard of a TR1. I understand that documents are legal if signed by a solicitor on behalf of a client. As there are in effect two clients presumably he must need instructions from both clients. Surely something as important as the ownership of a house could not be decided by one party. Also these TR1's are not signed, someone has just put an x in the box.

Check the Government website

Check the Government website regarding the TR1. This states quite categorically that  if there  is more than one transferree and box 10(11 in the case of forms pre 2008/9) is ticked then all transferres must sign and be witnessed. It does not say should it says must, so can that be wrong.

That doesn't actually answer

That doesn't actually answer the question.

The issue is in what proportion is the property held.

It appears what has happened is that the form is incomplete possibly due to error. The big problem is that we don't know what the error is.

The error could be ticking box 10 as opposed to leaving it blank. And as I read it there's no obligation for both to sign if box 10 is not completed.

Or it could be that it's not signed.

So it can be argued and presumably OP wants to argue that its not valid in as much as it transfers property in equal shares.

But there's no obvious reason why the transfer itself isn't valid if Box 10 was ticked in error.

The problem is without an express declaration of trust the law assumes equal shares!

 

Profile: retired barrister legal adviser with MOJ.

I would agree with that if

I would agree with that if the box is not ticked, but where the box has an x in it this falls outside the guidelines on the government website. Both parties must sign to confirm the declaration albeit equal shares, different proportions, or joint tenants. The transfer as such would be valid on the transferor but cant be applied to the transferrees.

Where the box is not ticked this would probably fall under a resultant trust.

I'm not sure what your

I'm not sure what your implied knowledge on these matters is based on.

Its a "resulting" trust by the way. And certainly some members of the Supreme court think its a constructive trust.

But it seems to me you can't assume the tick is not itself the mistake.

And if a transfer is not valid as you appear to infer how can it be valid against one party but not the others?

In the absence of an agreement it seems to me this case will be judged on the intentions of the party as construed by the courts.

And unfortunately it would seem for OP that's equal shares for starters.

 

Profile: retired barrister legal adviser with MOJ.

Thank you for taking the time

Thank you for taking the time to take a view point on this issue. I would now like to say that i do it have it in emails from the other party that i am owed the money and what rate of interest will be paid, several times. I also have spreadsheets from the other party which verify the statements in the emails, but my problem is that i am being told that i have to fight back from this position of equal shares and it is not a foregone conclusion that i will win because of an x in a box on a document that i have never seen or signed. How can that possibly be right?

It seems to me that based on

It seems to me that based on this further information this is not necessarily a conveyancing issue after all.

Early on OP said the various properties were purchased jointly at auction. There might even be something in the auction paperwork as obviously the auctioneer and vendor want a legally binding transfer immediately.

So that's a clear presumption of equal shares.

As OP has apparently got some signed documents which seem to relate to the manner of how the other party would repay him - that's a contractual not a conveyancing issue.

So if the other party has not paid OP the answer seems to be clear. Seek a charging order on the other party's share.

 

Profile: retired barrister legal adviser with MOJ.

Could the other party's share

Could the other party's share not  be classed as an equitable charge, if you have documentary evidence to substantiate your investment.

Sorry if i misled you , i did mean resulting trust. I forgot to check spelling before i posted.

You're now just confusing the

You're now just confusing the issue.

An equitable charge would not in any event give the power of sale.

And he's either got to establish a legal charge or get a court order anyway.

As I say its become increasingly apparent that this is not at its heart a conveyancing issue.

Profile: retired barrister legal adviser with MOJ.

In reply to the comment re

In reply to the comment re equitable charge, would that not have to be a signed document. I would say that both parties want to sell its just the division of equity that is the problem. is the court order relating to the  sale, if so then that would not be required because we are agreed.

Forgive my ignorance but is an equitable charge not proved by the emails and spreadsheets that he produced. If not how can i establish a legal charge.

As you say this is not a conveyancing issue would i need to give the subject a different title.

If the other party had paid

If the other party had paid you what he was supposed to would he have been entitled to equal share?

If so, then surely is easy.

You have the proof he agreed to pay and presumably he can't prove he did.

So as I said in the absence of an agreement you sue on the breach of contract and if you win you seek a charging order against his share.

Profile: retired barrister legal adviser with MOJ.

he had no money to pay with,

he had no money to pay with, but because he was kind of related i agreed to pay any outstanding monies eg. shortfall between mortgage and purchase price, stamp duty, renovation fees etc. In some cases there was no mortgage, and as i say it was agreed by way of emails, spreadsheets etc. Now however because of these TR1's he has been told that he does not have to pay back any of what was agreed, and he is entitled to 50/50 of the sale price minus mortgage. As i said before this is because someone put an x in a box on a document that i had never seen or signed. That is why i was looking for a definitive answer as to whether the document was valid or not.

I also for my sins gave him a share of the rent.

If you've got emails saying

If you've got emails saying he agreed to repay you then he is liable.

I don't really care what he says he's been told.

The fact is that if he went to court and said despite my promises which I have not fulfilled I'm still claiming my "legal" share I suspect he would get very short shrift.

Why not sue him for the non payment as opposed to fighting on the equal shares.

Profile: retired barrister legal adviser with MOJ.

Many thanks for that last

Many thanks for that last reply, it certainly gives me hope. He has a barrister involved who you would of think would have given him the same advice. I have had to see barristers and none have been as clear cut about it as your last reply. I have been if there are legal declarations i could rely on the doctrine of mistake, i have been advised that i could use proprietary estoppel as a fallback, and I think the equitable charge was also mentioned.

I must have 20 emails saying i am owed the money, and half a dozen spreadsheets showing the money owed and the interest to be paid.

Like you i thought if it went to court i could not lose but he is obviously being given different advice for some reason and i also have been told its by no way clearcut, everyone seems to think these TR1's overule everything and its up to me to fight back from that position. He has also tried using the inheritance angle saying that i gifted them to him. If i did that why would he produce emails and spreadsheets to show the money was owed.

This is forming part of a divorce case and i have to provide my points of claim for my money, and i need to make sure that i get the right advise, but its difficult to know which way to turn with so many conflicting scenarios. How do i know which is the best defence as such, having seen 3 barristers and got 3 different lines of defence.

Hence the confusion.



regarding the TR1's i came

regarding the TR1's i came across this statement "The presumption of entitlement to equal shares set out in 'Stack v Dowden' does not apply to commercial property or to property purchased as investment (see Laskar v Laskar). In such cases in the absence of any relevant discussion between the parties that show they intended otherwise their beneficial interests will reflect the size of their contributions"

This is back to a resulting trust

You appear to have had discussions and you have the proof, so i would have thought as David said that the courts will give him short shrift.

As to what barrister you should go with, thats a difficult one but you would hope they would all achieve the same result albeit by different approaches.

Are you a party to the

Are you a party to the divorce and is this a financial settlement?

If so - then all the previous advice may come to nothing.

Profile: retired barrister legal adviser with MOJ.

No, its my daughter who is

No, its my daughter who is getting divorced and she is in total agreement that the money is owed. Some properties are joint with me and  her, and some joint with me and the son in law. He wants all properties as per the TR1's to increase the size of the matrimonial pot.

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