Mrs B and Mrs C set up a business together, letting out property. Unfortunately, they disagreed on the ownership of the properties. Court proceedings began and several years later, the case settled. As part of the settlement, Mrs B was required to transfer two properties to Mrs C. Unfortunately, Mrs B has lost the capacity to manage her property and affairs and has a deputy appointed. On the title register, she co-owns the properties with Mrs C as tenants in common. If one owner has lost capacity, can the properties be transferred with a ‘regular’ application to the Court of Protection? 

When two people own land together, it creates a trust of land, and each owner is a trustee. Two trustees are required to sign documents for any sale or transfer of the properties described above. The Court of Protection’s input is required in this scenario because one of the trustees has lost mental capacity.

A Trustee Application will be required when:

• there is one continuing trustee (or trustees) in addition to a trustee who lacks capacity or;
• a person who lacks capacity is the only surviving trustee. 

There is rarely a blanket authority in a court order to transfer/sell properties, so authority must be sought from the Court of Protection. The court will expect specific documents and evidence to be provided before appointing a new trustee in place of the trustee who has lost capacity. This is not a scenario where a 'normal' application can be made to the Court of Protection for a property sale/transfer. 

We can advise on such applications and regularly prepare such applications for clients. The advice will be dependent on the specific circumstances for you and the above is simply an example of a possible scenario that we have dealt with recently. For more information or advice on Trustee Applications, please contact me.