Deputyship - England - Attempting to sell land

[HomeTimeIsHere]

Good Afternoon

Just looking to see if anyone has any knowledge on this subject...

TLDR:

Have deputyship over a family member and need to sell land. Order states we can sell property.

- Our solicitor says we can sell the land, and our OPG support state we can

- The other parties solicitor states we cant, and their OPG support says we cant

- Court of protection no help, and havent responded to any emails (as of now).

Can we or cant we?

Long Version:

A family memner has demantia, is in a care home and we have deputyship over them. We are looking to sell some land that they have to fund the care costs, we have a buyer and have appointed solictors.

Section 2(A) states "The court confers general authority on the deputies to take posession or control of the property and affairs of ## and to exercise the same powers of mananagement and investment, including selling and letting property as they has as beneficial owner".
We let the OPG (Office of the Public Guardian) know that we were selling it and they raised no concerns and were OK with this. Provided all the relevant paperwork to our solicitor and they are happy with this. All of a sudden the other parties solictors states that our Deputyship/Court order doesnt enable us to sell land and says we need to go to court again to get a new order.

Our solicitor is adament what we have is suffucient, that under UK law, the definition of Property land comes under this. He has also spoken to other colleagues/departments within their firm and they agree we can proceed (in their opinion). At this point we contact our OPG contact to query this and they state that we can sell land with our order, and also get a second opinion from another OPG team who confirms it.

The other parties solicitors are adament the order doesnt enable us to sell land and their contact at OPG states 'they beleive' that 'property' in this court order means just brick and mortar and not land so we need to go back and get another court order. And are now refusing to do any work until we provide a new court order.

I have tried to talk direct to the Court of Protection, and they are no help whatsoever and just constantly contridict themselves. They said to email the technical side and gave a very specific email address, we have emailed them twice over the last month and received nothing back, not even an acknowledgement. We chased up via the main telephone number to be told the team the email belongs too are uncontactable so they cant be called/emailed to confirm receipt or obtain timescales etc

Does anyone have any advice on this and can we or cant we? As we are stuck in the middle, we dont want to obtain a new court order, take 5-6 months and spend many thousands getting a new order if we dont need to. Its not good use of the money and would potentially go against our deputy role.

Our solicitor did suggest pulling out of the sale and finding someone else, but the other solicitor responded back saying we have no right to sell the land and whoever we try to sell it to will have the same issue with whoever they use.

Thanks in advance.

[ferret50]

So according to your potenial buyers solicitor, you can sell a building but not the land the building sits on?

Does not sound right to my non legal mind

I guess that you are trying to move on a field or a building plot?

I feel your pain having to deal with the Court of Protection, I had it to deal with around ten years back on behalf of my dementia suffering father.

[boyse7en]

I know nothing about the situation, but if your solicitor and his/her colleagues are happy that you have the right to sell the land, then just find another buyer whose solicitor's think the same.
The fact that the current buyers legal team think you need a different piece of paper doesn't mean they all do.

[Ezra]

Nothing your lawyer doesn't know, but this seems to back up your position:

In the UK, the legal definition of property is anything that can be owned, whether it's tangible or intangible. Property can be divided into two main types: real property and personal property.

Real property: Immovable property that's attached to the land.
Personal property: Movable property that's not land. Personal property can be further divided into chattels personal and chattels real.
UK land: Includes buildings, land covered by water, and any estate interest, easement, or servitude in or over the land.
Property deriving its value from land: Includes shareholdings, partnership interests, and interests in settled property that derive their value from land.
Building: Includes any permanent or temporary building, as well as any other structure or erection.

[HomeTimeIsHere]

ferret50 said:

So according to your potenial buyers solicitor, you can sell a building but not the land the building sits on?

Does not sound right to my non legal mind

I guess that you are trying to move on a field or a building plot?

I feel your pain having to deal with the Court of Protection, I had it to deal with around ten years back on behalf of my dementia suffering father.

Yes, according to them we could sell land as long as it has a property/residence no issue, but as this is just land/field/plot it cant be sold as they dont deem it to be 'property' and the court order should specify it... Even thought all definitions of Property specify land.

Thanks for the other comments. Understand its a very specific question, but sometimes worth an ask, as someone may know!

[Tanyastar]

Just a thought your Buyers' can always instruct a different firm of solicitors?

[alscar]

I realise that holding Deputyship is more restrictive ( and overseen ) than holding an LPA but it does sound as if the other Solicitor is being very pedantic.
The court has given you power to sell
property including for the purpose of funding care home fees and in effect the other Solicitor is now blocking this.
Has this been pointed out to them in no uncertain terms ?
Failing this I think I would be asking / telling the buyer to change his solicitors otherwise he won’t be getting the land !
Good luck in resolving.

[HomeTimeIsHere]

Thanks for the comments.

We spoke to the buyers today and they said they were talking to another solicitor to see if they would proceed, and gave an ultimatum that if we dont have an answer shortly we will have to move on.

I spoke to the solicitor who obtained the order for us, to see if they had any additional paperwork that may help but they dont, but their opinion was what we have is fine and doesnt know why the other one was being awkward. They suggested contacting Land Registry as they will ultimately say Yes/No to it being registered/transferred so see if they would accept it or not. Phoned them up and they cant provide any guidance or pre-advice and said we'd have to to submit the application first and then they'd look at it.

Only advice i can give... Make sure you sort out your affairs, POA etc before your mind goes! Will save your family alot of stress in the worst case scenario!