Bequest of lease in my will

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  • HazeltonLane
    replied
    Thank you @Lawcruncher I will try that!

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  • Lawcruncher
    replied
    Try this:

    Thank you for your letter/email.

    Your suggestion that my intended beneficiaries should apply to be on the Council's Housing Register is noted. However, it does not allow for the possibility that they may not be entitled to be registered at the relevant time.

    As advised in my last letter/email, as a matter of law, on my death the property will vest in my executors who have an obligation to assent it to the beneficiaries. The assent needs to be perfected by registration at HM Land Registry - one of the purposes of having a system of land registration is to enable third parties to determine who is the owner of land. The problem is that the terms of the lease do not take account of what is to happen when the transmission is on death rather than assignment inter vivos.

    Please ask the legal department what the council's requirements are to enable beneficiaries to be registered. If the legal department declines or is unable to give an answer, I shall have to consider making an application to the court for an appropriate declaration on the basis that the lease provisions are an unlawful restraint on alienation and/or a breach of Article 1 of the First Protocol to the European Convention of Human Rights.

    *
    I think the time has come to copy your local councillor in on the correspondence and ask him/her to press for a full reply.

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  • HazeltonLane
    replied
    I have received a reply to your letter Lawcruncher. It reads as follows:

    "I am not legally qualified, but I read the restriction in the Agreement to mean that whether the lease is sold, passed, transferred…; it can only be assigned to a “qualifying person”, i.e., someone who is on the Council's Housing Register.

    I can only suggest if you know the person you wish to inherit your lease, that this person applies to join the Housing Register and then by default they will be a qualifying person."

    So apparently unless my relatives are in housing need, live in my city and fulfil all the other requirements to be on the Housing Register, they can't inherit my property. (!?)

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  • HazeltonLane
    replied
    Lawcruncher Fabulous, thank you! I will send this first thing on Monday.

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  • Lawcruncher
    replied
    Write back and say:

    I appreciate that the council's legal team cannot give me personal legal advice, but that is not what I am seeking. What I want to know is what the council's requirements will be on my death.

    By virtue of section 1 of the Administration of Estates Act 1925, on my death testate leaving a will appointing executors, my real estate vests in the executors. By virtue of my will the equitable or beneficial interest belongs to the beneficiaries entitling them to call for the legal estate to be vested in them by the executors.

    The problem is that the detailed provisions in the lease relating to assignment are drawn up on the assumption that any assignment will be for a consideration and that the assignee will be a "Qualifying Person". I have consulted a specialist landlord and tenant lawyer who advises me that how a transfer to beneficiaries on death is to be perfected is uncertain.

    I am sure you will appreciate that this uncertainty is a worry. What I am looking for, to save uncertainty, delay and expense when I die, is confirmation now of what the council's requirements will be on my death regarding the assignment of the property to the beneficiaries of my will. May I please have that confirmation?

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  • HazeltonLane
    replied
    Many thanks Lawcruncher

    I have already raised this with the Council… this is the exchange I had with a Housing Officer after I sent my initial question to him as per my OP here.

    1st reply from Housing Officer:

    I have had difficulty in obtaining a formal answer to what is in effect a personal lease issue.
    The informal information I have obtained is simple; that no matter how you dispose, sell, transfer your lease, it must be to a qualifying person as defined in the agreement.
    As the council are not directly involved in your lease agreement I am afraid we can offer no further help other than to advise you to seek independent professional advice.


    Follow-up from me to Housing Officer:

    I don't believe this is a "personal lease issue" because I need clarification about the DHMU agreement, which is an agreement between the council and the developer of the flats.

    I don't need clarification about my own lease. (The lease just states that the DMHU Agreement has to be complied with.)

    It is my understanding that the restrictions in the DHMU Agreement do not necessarily apply to how the property devolves upon my death. It only mentions conditions for the sale of the lease.

    I also understand that there may be succession rules under the Landlord & Tenant Act that are relevant here.

    Is there someone on the Council's legal team that can advise on this?


    2nd reply from Housing Officer:


    I have again approached the Councils Legal team and they say `they are unable to provide legal advice to members of the public we are legal advisers to the Council only`.
    Myself & my own team are certainly not legal trained. I do not know how I can be of any further help to you other than to advise you to seek independent legal advice.


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  • Lawcruncher
    replied
    I have looked at the extracts from the documents. They both refer to assignment/transfer of the property, but say nothing about transfer on death. The clause more or less presupposes that any assignment/transfer will be on a sale.

    As I said above, the law provides that on the death of a testate person their property vests in the executors. The equitable interest belongs to the beneficiaries. It is difficult to see how the council can prevent the executors from perfecting the beneficiaries' interest by transferring it to them. A bit of a snag is that the procedures set out in the documents are in part not really appropriate to a transfer on death. It is a bit of a head scratcher: Apart from who owns the property there is some doubt about who can occupy it on death under clause 3.2.

    I think that what you would be advised to do is to write to the council and ask what the position is with regard to transfer to and occupation by beneficiaries on death. In the meantime get on and sort out a will assuming there is no problem.

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  • HazeltonLane
    replied
    Lawcruncher I have emailed you the documents. Thanks!

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  • Lawcruncher
    replied
    What I meant was that when I click on the links nothing happens except for the revolving circle. It is the same this morning, You can email the docs to me if you like. See PM.

    Leave a comment:


  • HazeltonLane
    replied
    Thanks Lawcruncher. It should allow you to view them directly in the browser, so you don't even have to download them if you don't want to.

    The files were too large to upload here, even when condensed.

    Leave a comment:


  • Lawcruncher
    replied
    At the moment the files are not downloading. The circle just keeps going round and round. Ill try again later.

    Leave a comment:


  • HazeltonLane
    replied
    Lawcruncher
    Many thanks for your help. The documents are viewable at the links below.

    Lease (relevant section starts at 20.2)
    https://drive.google.com/file/d/10Xs...ew?usp=sharing

    DHMU agreement
    https://drive.google.com/file/d/1Yjh...ew?usp=sharing

    Leave a comment:


  • Lawcruncher
    replied
    "Assignment" can be both general to refer a number of instruments which transfer property and, more specifically, to an instrument transferring a lease. However, a transfer of property by personal representatives to beneficiaries is usually referred to as an assent. The name of the document is not though important, What is important is precisely what the DMHU agreement and lease say. Whatever it says, one thing is certain and that is that, if you make a will, on death the property will vest in the executors by operation of law. What the executors can do is is however (possibly) controlled by the DMHU and/ore lease.

    You have given us the definition of "Qualifying Person", but we also need to know what the agreement and lease say about transferring/assigning the property if we are to take this issue further.

    Leave a comment:


  • HazeltonLane
    replied
    This is the advice I received from the Leasehold Advisory Service. So, as Lawcruncher said, they are not infallible!

    "Transferring property under a will would amount to an assignment. I would suggest you take advice from a conveyancing solicitor on whether there are any exceptions to the DHMU Agreement if you are transferring the property under a will."

    Leave a comment:


  • HazeltonLane
    replied
    This is the advice I received from Lease. So, as Lawcruncher said, they are not infallible!

    "Transferring property under a will would amount to an assignment. I would suggest you take advice from a conveyancing solicitor on whether there are any exceptions to the DHMU Agreement if you are transferring the property under a will."

    Leave a comment:

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