Trustee in Property

[Andy01]

Hi I may not be in the right forum but I need to know that I am a trustee of the property. Mortgage is on my son's name and I provided the funds and we set up the Trust that when ever he wants to sell it I will be sole beneficiary. We did this to protect for any unhappy events he face like divorce. and Now he is in between divorce and his ex left the house. I want to rent this or sell but she has put her interest with the land registry although she only lived 18 month in this so called "matrimonial" house. My moved back with me and property is vacant right now. I am concern about the mortgage payments. What are my rights being Trustee?? I can explain more if any one need to ask any questions. Thanks in advance for your help.

[citizenB]

Thread moved to General Legal Issues.

[steampowered]

Hi, there are a few complications which we need to unravel before you can receive sensible advice.

 

The first question is who is the registered owner of this property on the land registry - you or your son?

 

The second question is what do you mean when you say you set up a trust? Is there a signed Deed of Trust or similar legal document?

[Andy01]

1. Yes it is on my son's name for mortgage purposes only as I have invested the finance.

2. Yes There is a signed deed of trust and it is also registered with land registry.

any more questions please ask

[steampowered]

OK - so he is the trustee, you are the beneficiary.

 

As a matter of technical property law, you would have the rights set out in the trust document. A sole beneficiary can usually require the trustee to transfer the property to him/her. However, in practice you will not be able to exercise this right because you would need consent from the mortgage lender.

 

You are left with the issue of the home rights notice. This would make it difficult to sell the property, although I imagine you could still rent it. To be honest I think you might find it difficult to remove this unless your son reaches a settlement with his ex spouse or he goes and gets a court order.

 

If a divorce judge views the whole trust arrangement as a sham and that the property is in reality owned by your son, he can still take it into account from a divorce perspective despite the trust deed.

[Andy01]

No I am the trustee and beneficiary. He only got me the mortgage......

[Andy01]

My son never paid any monies toward the deposit . It is stated in the Trust deed that He has no rights of the any money of profit. This trust was made by solicitors and they also registered with land registry.

[steampowered]

It is legally impossible to be both the trustee and the beneficiary. If the trustee and beneficiary are the same person, you don't have a trust.

 

'Trustee' means the person who holds registered title on behalf of another person. If your son is the owner registered at the land registry, he is the trustee and you are the beneficiary.

 

It sounds like the trust deed was done properly, in which case it will be binding as a matter of property law. The thing to remember is that family judges have a very broad discretion to reallocate assets between couples on divorce. If the judge feels that the property is 'really' owned by your son despite what is written on the documentation, he will take it into account when deciding what should happen to the other marital assets following the divorce. I'm not saying he will see it like that, just that it is a possibility.

[BazzaS]

It is legally impossible to be both the trustee and the beneficiary. If the trustee and beneficiary are the same person, you don't have a trust.

 

Make it "can't be both the sole trustee and sole beneficiary", and I would agree.

 

Multiple trustees, and/or multiple beneficiaries and you can be both trustee and beneficiary.

[Andy01]

one of the property my son's name but my wife and my daughters are the trustee?? so is this OK

[Andy01]

Thank you Steam

Ok lets look at this way that she only lived in the property for 18 months . property was bought 7 years ago. her contribution was only sharing the mortgage for that period. What can be the worst outcome??

 

It is legally impossible to be both the trustee and the beneficiary. If the trustee and beneficiary are the same person, you don't have a trust.

 

'Trustee' means the person who holds registered title on behalf of another person. If your son is the owner registered at the land registry, he is the trustee and you are the beneficiary.

 

It sounds like the trust deed was done properly, in which case it will be binding as a matter of property law. The thing to remember is that family judges have a very broad discretion to reallocate assets between couples on divorce. If the judge feels that the property is 'really' owned by your son despite what is written on the documentation, he will take it into account when deciding what should happen to the other marital assets following the divorce. I'm not saying he will see it like that, just that it is a possibility.

[steampowered]

Thank you Steam

Ok lets look at this way that she only lived in the property for 18 months . property was bought 7 years ago. her contribution was only sharing the mortgage for that period. What can be the worst outcome??

In that case, I would think there is a strong argument for saying that the property is not a 'marital asset' and should therefore not be taken into account during divorce. The first stage would probably be to try and find out what the ex wants and what she is trying to achieve with the home rights notice. If she wants something unreasonable, then best to speak to a family law solicitor.

 

You may want to consider trying to rent the property in the meantime, if your son will not be returning?

[Andy01]

Thanks steam

Yes I agree that it was not "Marital Asset" I just let them live there until they save and buy their own. Yes She did add her interest with land registry. First she wanted to move in this house and she is going to rent as this will be far away from her parents home where she has chosen to live. Taking about her interest is of course she will be looking for some easy cash.

Family solicitor thinks that after divorce nisi court can make order to remove her name from land registry. Like your advise I just wanted to rent to cover the mortgage while all this crap is going between them. At the moments no one is paying the payments and I cant afford to pay out of my pocket. Can I rent this while this is going???

[steampowered]

That sounds sensible Andy. The easiest way to deal with this would be as part of the whole divorce process. There may be a few marital assets such as joint bank accounts, car etc. which might need to be divvied up, so the house issue should be dealt with at the same time.

 

 

It might be difficult to sell the property while the notice is there, but I can't see any obvious reason why it would stop you from renting. Your son might need to be the 'landlord' who signs the tenancy agreement if he is the registered owner of the property on the land registry.