Realising your interest in a property that has been left to you in a Will

Inheritance Act Lawyer, Naomi Ireson, looks at what can be done by beneficiaries who are left an interest in a property that is being occupied by a third party.

We are often contacted by beneficiaries who inherit an interest in a property, or a share of the net proceeds of sale, under the terms of a Will but are yet to receive their interest because another party is in occupation.

One remedy is to seek an order for sale and/or occupation under the Trust of Land and Appointment of Trustees Act 1996 (“TOLATA”).

Occupation Rent

Claims for occupation rent can be pursued against a party who remains in occupation. The value of the rent is not necessarily assessed on the market rent, as often the party in occupation is in occupation as of right as a beneficiary and not as a commercial tenant. It is likely to be useful however to obtain expert evidence as to the market rent as this is often the value assessed by the court in any event.

Order for Sale

Before considering an application for an order for sale, it is essential to consider the purpose of the occupation and the purpose of the trust. It is important to ask yourself whether the purpose of the trust now come to an end? If so, it follows that one can seek an order for sale.

In reality, the Court is likely to order sale, possibly deferred, unless it is a domestic property required for the benefit of minor children. In any event, the court has the power to order the sale of part of the land it this is feasible. It is also possible for one party to buy the other out.

These applications can be pursued by cohabiting partners or against an estate of the deceased person. They are pursued in the county court initially.

For further information contact us on 0808 139 1599