client and wife purchased council house with joint mortgage in 78 or 79. in 1980 they separated, amicably, and have never divorced - both are RC. wife made all payments after the separation, with some help from adult children later. from separation, husband has regarded the property as his wife's because he relinquished all responsibility for the house to her, and made no contribution. it didn't occur to him to sign his interest in the property to his wife - if it had, he would have done so. was working at that time. it is believed that wife did not take action to remove his name from mortgage, and their joint names appear on the deeds. client does not believe he has any moral right to a claim in the property, and would not willingly take legal action. wife is over 70 and in poor health. unable and unwillinging to buy out his share or sell. client himself is 74, disabled with high mob DLA. Pension Service has valued property at £100,000 in 2004, and appears his share has been deemed to be a fifth. this has meant that he gets saving credit, but tariff income wipes out guarantee credit entitlement, - his income is £1 over the limit. this has stopped him from getting HB/CTB and he is in real danger of eviction. has been advised by DWP that if he transferred property to her it would be considered deprivation. we haven't seen any docs relating to the valuation - although client struggles to believe it is worth so much, being 'jerry built' concrete construction, i expect it was right at the time - but question the rest of the valuation, and doubt that it was done in accordance with the CD guidance.

there's been some foul- up regarding his appeal rights, which is remediable, but i need as speedy a resolution as possible, due to imminent possession proceedings, and am looking to persuade for urgent revision or supersession. client has some serious health concerns, but without HB, no apparent means to pay his rent. there are lots of potential arguments in his favour, but they threaten to become complex and time-consuming. i'm hoping to persuade the PS to act fast, but think they need clear and succinct. the case law on 4(b) of the disregards schedule is not as helpful as i would like. i'm thinking that it is unlikely that any court would force Mrs. to sell, and she is not in a good position to borrow, and i'm looking at R(IS)1/97 about reversionary interest, and thinking i should argue para 5 for disregard.???

i'd appreciate any advice on this, best strategy, and any thoughts at all on the property ownership issues occurring to those who are knowledgeable about such matters (i'm not very... : ))

thanks

Why not paragraph 4? They aren't divorced and may not fall within the definition of estranged which tends to mean "not on speaking terms".
I can't see this as a reversionary interest. It's an interest in possession, not a future interest.

hi ariadne
para 4 was my first thought, and i have tried to leave that argument open, but i'm discouraged by the case law, particularly R(IS) 5/05 where the Commissioner said (in para 12) that the question is whether the parties "have ceased to consider themselves to be a couple and not whether, despite that, they continue to maintain friendly relations." Also, in R(IS) 1/97, the circumstances are quite similar, although in that case, the wife was not the joint owner, unlike this case - and in para 10 there is reference to the evidence clearly and unequivocally showing that while divorce had not been been considered, the estrangement was permanent. it would definitely be the most straightforward solution, not sure i can argue my way around it, but would welcome suggestions...

R(IS) 1/97 seemed to me (although my heart sank at the mere sound of the word 'reversionary interest) to offer the best hope - i've just got hold of a copy of the land registry doc. confirming December 79, and couple separated in 1980 at some date client can't remember, which presumably makes his beneficial interest very small indeed...the commissioner got around the problem by concluding, after analysis of the case law, that the court would impose a constructive trust with a result that she was a tenant for life for the purposes of the Settled Land Act 1925, and the husband's interest was treated as a reversionary interest and disregarded under para 5. The Commissioner cited Palfrey - " The touchstone in my judgement lies in the concept of a "reversionary" interest as something which does not afford any present enjoyment but carries a vested or contingent right to enjoyment in the future."

it all sounds horribly complicated, and unsatisfactory in terms of sorting it out urgently, when it seems so self-evidently unfair to client (and wife. i'm pretty much out of my depth when it comes to property law, and trusts, so if there are legal technical reasons making para 5 dead in the water already, i need to know... : )

from what client says, the tacit understanding between himself and his wife in the circumstances of their separation was that he relinguished his interest in the property to her. (at that time it was more liability than asset...). neither has attended to the legal formalities...hence the current problem. is there a simple solution there, staring me in the face...?

If she can get an occupation order from the court under part 5 of the Family Law Act 1996 then the valuation of the property may be reduced to very little or even nil.

thanks Paul. is this something that only she can do, or could client apply?

ok - got that, i think - the wife would apply...

Fri 18-Apr-08 01:22 PM by Tony Bowman

Apologies for not summarising, but here is an extract from an old sub that might help a bit (note para 2.3 especially):

Capital
2.1 There is no dispute that on 19/11/99, Mr J failed to disclose that he owned a property. This failure lead to the later decision of non-entitlement and overpayments. However, I submit that the Benefits Agency, having become aware of the property, failed to properly determine its market value or consider if any of the disregards contained in schedule 8 to the JSA regulations applied.

2.2 According to JSA regulation 111(a), capital value is be valued at the current market or surrender value less 10% for costs of sale and the amount of any incumbrance secured upon it. Market value is defined in several reported commissioner’s decisions as the price commanded between a willing buyer and a willing seller on a particular date.

2.3 In this case, the market value would be affected by three very important factors unconsidered by the Benefits Agency. First, the existence of the matrimonial home rights notice lodged with the land registry. My understanding of such a notice is that whilst it does not legally prevent the sale of a property, it would be quite unrealistic to expect there to be a willing buyer. Second, regardless of the matrimonial home rights notice, a former partner’s statutory right of occupation under the Matrimonial Homes Act would affect the value (CIS553/1991 (appendix 1). Third, if there were a willing buyer, the market value would be further altered by the fact that until 17 January 2001, there were tenants occupying the property.

2.4 If we assume that a market value greater than nil can be assessed, then the amount of the capital needs to be properly calculated. 10% for the costs of sale and the amount of the mortgage would have to be deducted from the amount. Furthermore, as the Benefits the Benefits Agency has already acknowledged in their letter of 27 June 2000 (doc 116), the beneficial value of Mrs J’s interest in the capital should be calculated and deducted from Mr J’s share.
2.5 The decision maker should also have properly considered the provisions of schedule 8 to the JSA regulations (capital to be disregarded).



In cases like this I tend to focus most efforts, very successfully, on capital valuation. It is not simply a case of valuing the property and splitting it up. Market value is that "commanded by a willing buyer and a willing seller" - it is not what we normally think of as 'market value'; i.e. what you seen in an estage agents window.

There a great many things that will affect the market value. Not least in your case that whilst the client might be willing to sell, is the wife? If you were a buyer, what price would you pay for a share in a house with a disabled elderly person who doesn't want to sell. £0?


Good luck JJ!

There was a similar problem and discussion a while back. Here is the link

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=103&topic_id=4143&mode=full

Hope this is relevant as I have not had time to read the current discussion in detail.

just noticed this thread.

i wonder if a family lawyer may be able to help get a judicial separation formally sorted out, wiht formal order setting out the position re the property, which shoudl help. woudln't be quick, but would certanily help.

the also need advice re wills and property transfer urgently

amongst other things - given that they are still married, and assuming house is joint tenancy, whichever dies first, the other owns the whole house in entirety with no need for the matter to be mentioned in either will. i doubt if that's the intention of either party, given what you said in your original post.

Thanks JonL and Tony...i'm pursuing all possible arguments in this case, and i do think the market value is an issue, which i'm looking into further. there's not a great deal of information i've been able to find in the public domain, so may need an expert report...

something that is really bothering me, and i'd appreciate any views...client does not believe he has a moral right to pursue his interest...this might be tricky ground but is it entirely irrelevent?

in his mind, and his actions, (he went to live in a caravan for several years, took no action wrt his interest in the property) he relinquished his interest in the home 28 years ago, except he did not attend to the legal formalities of doing so. he could have signed over his interest then - he was working, no deprivation question to consider. he didn't do so because, like a lot of people, it didn't occur to him that there was a need to... he knew he would not pursue any legal right to his interest, and, since his wife also took no action, i assume she also trusted that her husband would not. neither of them could have known at the time that property values would soar, and be of interest to the Secretary of State.

it is not that unusual that people believe they can arrange their lives themselves, and don't consider consulting solicitors...however, it seems he is prevented from putting the matter to rights legally now, because of the deprivation issue. i'm wondering whether that is right... despite appearances. is there a constructive trust argument here regarding the transfer of the property?

to realize his asset, he would be obliged to take legal steps against his conscience, the decision intrudes on a third party's (his wife's) right to a home, and intrudes into his family relationships - he has adult children, and does not want those relationships to be damaged by actions of his which would be seen as dishonourable in the circumstances. (After paying for the house once, should the wife borrow money to buy out her husband's share, 28 years after he left her to it, and at a cost much higher than the original mortgage to acquire the property...?)

Hi JJ,

I've been having a look at reg 51 which deals with the valuation of capital jointly held.

On the face of it, it doesn't look as though the client can get away from the fact that the property is jointly owned - morals, as we all know, rarely play any part in benefit administration - and so it must count to be valued. I don't know what "beneficially entitled in posession means", but I suspect it means 'it's his if his name is on it'.

However, check the commentary on page 329 to the HB Legislation and the reference to the CoA decision in Palfrey and related CD's. This basically confirms what I suggesetd in my earlier post.

I've had a few like this and I always go down the valuation route and have never lost - because when the absurdity of the value of 1/2 a house with an occupier who doesn't want to sell is considered, common sense usually prevails. I also think that getting a professional valuation is unnecessary and could be counter-productive.

Tony

The legal title (whose name its in) always has to be distinguished from the beneficial title (who is entitled to the benefit of sale). Put at its simplest, two people who have legal title have a joint tenancy in law. However two people who have beneficial title may have a joint tenancy beneficially or be tenants in common. If they are joint tenants beneficially (and this is the subject of complex enquiries) then they each get 50% of the remaining proceeds of sale. If tenants in common they each get the percentage share of what they put in.

The mortage was taken out in 1978 or 79 and the wife has paid the mortgage ever since. Is there any still outstanding? How was the purchase financed originally and by whom, apart from the mortgage? It's certainly arguable that in paying the mortgage alone all this time the wife has acquired a much greater beneficial interest in the property than 50-50, on the principle of resulting trusts. It would be useful to know whether they bought as joint tenants or tenants in common, of course.
My old equity lawyer's senses are saying that this wouldn't be an easy case to disentangle and if it came to selling the house and divvying up the proceeds there could be a right royal dingdong of a High Court case. And the husband's signature would be needed on the transfer, by the way, as is always the case with joint owners. This could be the sort of case that makes no-one rich except the lawyers (common result of people thinking it's too much effort to involve solicitors...) All of which could be relevant ot the issue of valuation. Who would want to buy the house, or his interest in it, with all this hanging over it?
Oh, and by the way, if it is owned as joint tenants, any attempt by him to deal with his interest seprately from hers would sever the joint tenancy and at that stage convert it into a tenancy in common in equal share.
I'm so glad it isn't my problem to sort out.

I don't know if i am missing something here but is the simple route not just to forget all these complexities for now, get client to make an appt with a solicitor and than ask HB to disregard capital on the basis that client is taking reasonable steps to sort this out? Please see my link to previous post above.

Presumably a legal opinion would be that the value is negligible. If a tribunal comes up soon then they would hopefully make the same decision.

Obviously you need to stress to the client that obtaining a legal opinion does not mean he is going to force his ex wife to sell, just that you are trying to have his share valued.

Thanks everyone - my Pensions Service contact on this case has become incommunicado, which isn't helping my stress levels... : (
i made a preliminary enquiry with a respected commercial valuation and property firm, and a very helpful person got back to me with his informal opinion that no court would award our client an interest in the property in the circs - he too suggested a family law/property law involvement...

client has had an HB tribunal hearing, but although the tribunal, and even the LA were sympathetic, they are bound by reg 27 to the SoS's assessment of capital and income.

it's horribly complicated, isn't it? first tier decision-makers aren't generally expected to go to such legal convulutions, and it isn't desirable that they should. i've copied the guidance in the DMG below, for information. My thoughts are that the D-M can't ignore the information regarding a negligible beneficial interest...

my maybe simplistic approach would be (it was a 25 year mortgage, btw) would be 25 x 12 (monthly payments) = 300 x 2 (joint wotsits) = 600. assume client paid 12/600 (he can't remember when in 1980 he left - assumed December max) = 1/50th share. Assuming a current valuation of the property now of £150,000 (a high estimate), that would put his interest at £3,000.

the balance of probability, which we don't hear too much about these days, is at times, a very important tool for first tier decision-makers ( i did it for 20 years)when a pragmatic and commonsense approach is called for, and imo this case is crying out for it.

incidently, i've recalc'd his savings which have gone down a little, and reduce the tariff income by £1.00 (using the troublesome capital valuation still) he needs it to reduce by another penny...

i'll plod on, and keep you posted...
********************************************************************

29256 After it has been agreed between tenants in common or common owners what share each person owns it is possible for the agreed shares to be varied. This may happen where a tenant in common or common owner
1. pays
1.1 the mortgage or
1.2 a greater share of the mortgage on a property or
2. spends money on improvements to a property.
Example
Shahid and his brother Saleem bought a house together as tenants in common.
They agreed that each of them should own 50% of the property and pay half the mortgage. Shahid takes unpaid leave from his job to travel abroad so he is not able to make repayments on his share of the mortgage. Saleem therefore agrees to pay all of the mortgage on the property. Saleem’s share of the property increases in proportion to the extra payments he makes. Shahid’s share of the property
decreases by the same amount.

Fri 02-May-08 02:50 PM by shawn

just to update so far - i received an e-mail from the customer contact analyst shortly after the last post. She had seemed quite helpful until she spoke to the decision-makers, who told her
"Apparently the only way forward now since Mr xx appeal was struck out; is to request a review from the Chairman of the Tribunals Service, request a judicial review and leave to appeal to the commission.." whereupon she seemed to wnt to wash her hands of the problem.

as you can imagine, i wasn't thrilled by this, and replied that she could help by ensuring our client's case was handled as an urgent priority with the 8/5/08 deadline in mind, and that a prompt and appropriate remedy is available in the form of a revised decision. She has faxed copies of some documents, eg the valuation document, and the ACI advice, and some copies of correspondence about the appeals, which has helped to clarify the position. i also sought help from their solicitor's office, but they have no instructions and don't seem to want to get involved until it gets to an adversarial stage...i've had no further response from the customer contact analyst, who is not returning my phone calls or replying to my e-mail, so i don't know whether they are considering our revision request - giving silence is giving me kittens... i have tried to be nice and i've tried to be patient...

our housing solicitor is a little more optimistic now that we may be granted a further adjournment. i'm now working on a briefing for our housing solicitor and the court...and it's looking like we may have to resort to JR if that's what it takes...

...or a late appeal? It doesn't matter that one was struck out already.

yes, or even a timeous one...how long can they sit on a revision application?
i didn't buy the decision-maker's advice for a minute, but maybe some sort of kick up the bum may be needed to help them grok the meaning of 'urgent priority'...

i'm part way through a letter to the SoS himself...does anyone think this is a very bad idea...? : )

No. It will probably end up back at your local 'official correspondence team' but, if they're anything like ours, you might see something done.

just to update- the pensions service faxed me a bunch of documents on 23/4/08, but simultaneously closed down on me. the customer contact analyst (???) was piggy in the middle - i felt a bit sorry for her - she had to go the decision-makers for responses to my legal arguments, and they basicly said poo-poo, go away.

total radio silence was imposed on me after 23/4/08, which caused me no end of anxiety, because i was really trying to get something sorted out by 8/5/08, the court hearing date. we had been worried because the previous judge had indicated that a further adjournment would be unlikely, and meanwhile, client was very poorly, and undergoing urgent medical tests, with an unspoken fear of the worst.

however, the docs were a great help, and i was able to unravel what had gone wrong. (a lot!) the capital assessment was based on a valuation report based on client having a deemed 50% share. in the original decision, the D-M had taken the valuations for the half share, divided it by 2 for some incomprehensible reason, and deducted 10%. when client appealed, they had revised the decision, going to the lower set of figures provided by the valuer (for the sale of the 50% share on the open market), and again divided it by 2 less 10%.

they had ignored the fact that his beneficial interest was reduced as outlined above, and had not followed their own guidance in DMG 84258, coming under 'Beneficial ownership in Particular Cases'. in other words, the valuation was 'mickey mouse'.

the revised decision lapsed the appeal, and i saw on the GL24 that an official had actually circled the dates given by client of the purchase, and the date he left, and written a note "different dates from those given to VO. He bought property in 1967 and left 20 years later, giving him definite rights to the property." this had NEVER been put to client, who has been left unaware of this throughout a 3 year dispute with them, and is incorrect - the purchase date is verified as 1979, for one thing.

the letter claimed in subsequent correspondence to notifyhim of the lapsing of the appeal in fact makes no mention of the word 'lapse' and doesn't advise him of his appeal rights, and it was pretty clear, that in all his attempts to get his case to a tribunal, the original and revised decisions had never been properly reviewed, even though a fair amount of effort went into preventing subsequent appeals from being admitted, and there were many other letters from client, all of which shoulf have been treated as revision applications. he said in one letter 'you are ignoring what i tell you, and i feel like i'm going round in circles." he was spot on.

unable to get any response to e-mails and phone messages, we had no option but to request an adjournment, and i decided to to attend the court hearing with our housing adviser, which was a new experience for me. i finally got a call from the CCA the day before the hearing, to the effect that there was nothing they could do, and the D-Ms had advised that they couldn't revise, because the decision was a decision of the tribunal! !!

i completed the letter of complaint and the letter to the SoS i had been preparing (no longer a question of whether the decision is wrong, but a question of how, and how quickly are they going to put it right), and we were fortunate with the judge, and the other side, and got a 42 say adjournment.

since then, i had further radio silence, and while i didn't think they had any legs left to stand on, felt my anxiety rising because i still had no indication whether or not i would continue to meet with obstructiveness.

i left another message yesterday asking if they would contact me to let me know how they intended to respond, adding that we would otherwise have little option but to instruct a barrister for JR, or request the judge issues a witness summons to them.

here's the good news. i received an e-mail before lunchtime with a copy of a revised decision dated 22/5/08 on the valuation, back to October 2003. : ) : ) : )

of course i don't know what worked! lol!

thanks for all the advice and support on this.

jan

Have a good bank hol Jan!