sale of jointly owned property (COP GN2)
| Published date | 21 March 2018 |
1
Guidance on the sale of
jointly owned property
COP
GN2
12.17
Court of Protection
(You should also read Practice Direction 9F available from the website www.gov.uk/court-of-protection)
Introduction
1. When two or more people own real property, i.e.
land and houses, together they are referred to
as the trustees of that property. If one or more of
those trustees becomes incapable of managing
their property and affairs they will not be able to
sign any legally binding documents dealing with
the property. If such a property is to be sold an
application will need to be made for an order
appointing someone to replace the incapable
trustee, or trustees.
2. Section 20(3)(c) of the Mental Capacity Act 2005
restricts deputies from carrying out trustee
functions. This does not mean that a person
appointed as a deputy cannot also be appointed
as a trustee. However, they are distinct and
separate roles and require separate applications
because the appointments are made under
different st atutes.
3. Applications for the appointment of a new trustee
for real property can be divided into two main
categories. Those where there is an existing and
capable co-owner (‘the continuing trustee’), and
those where the incapable person is the only
surviving trustee.
4. Where there is a continuing trustee, or trustees, an
application needs to be made to the court under
Section 36(9) of the Trustee Act 1925 for the court’s
permission for the continuing trustee to appoint a
new trustee in place of the incapable person.
Where the incapable person is the only remaining
trustee, an application needs to be made to the
court under Section 54 of the Trustee Act 1925
for an order appointing at least two trustees in
their place. (A minimum of two trustees need to
be appointed in order to sell a property.) This
situation most commonly arises when the property
is held as tenants in common and the co-owner
is deceased. It is important to note that unless the
executors of the deceased’s estate have been put
on the title to the property they cannot legally deal
with its transfer or sale as they are not trustees of
the property.
How to apply
Section 36(9) applications
• COP1 Application form
• COP1D Annex D: Supporting information for
applications to appoint or discharge a trustee
• COP24 Witness statement. This is to provide the
court with the necessary information as set out in
paragraph 5 of Practice Direction 9F
• COP12 Special undertaking by trustees. With
the details of the continuing and proposed new
trustees, and the property in question. The form
must be signed by all parties.
• COP24 Witness statement. A certificate of
fitness. This is only required when the proposed
new trustee is not the deputy, proposed deputy
or a solicitor. The certificate of fitness must be
completed by someone who has known the
proposed new trustee for at least two years and
can attest to their suitability to act.
Section 54 applications
• These applications consist of the same forms
listed above.
• In cases where a co-trustee is deceased the
application must be supported by a copy of the
will and grant of representation to the estate of the
deceased.
• If the joint tenancy of the property has been
severed a copy of the notice of severance must
also be filed.
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