Irwin Mitchell Private Wealth | Safeguarding a loved one's property from fraud

When a loved one passes away, it is a difficult time with much to organise; the potential risk of fraud will be far from your mind.

However, as a recent Court of Appeal judgement shows, taking steps to safeguard your loved one’s property is paramount, and there are straightforward steps that can and should be taken.

On 21st December 2018, the Court of Appeal handed down its judgement in the case of Antoine v Barclays Bank plc and others. The case concerned a property in Fulham owned by Mr Joseph. He had passed away in 1996 and his son, Mr Antoine, had obtained letters of administration.

However, Mr Antoine admitted that he had failed to take legal advice concerning his duties as an administrator at the time. Crucially, he did not register himself as the registered proprietor or contact the Land Registry in order to make the necessary changes.

The property remained vacant for the next decade, in 2006 it attracting the attention of a Mr Taylor.

Mr Taylor made a claim through the courts for possession of the property. He produced a document for a loan he purported to have made to Mr Joseph, secured on the property. The document was in fact fraudulent, but the court ruled in his favour, as the registered proprietor was Mr Joseph and he of course made no representation to the court, as they were unaware of his death. Mr Taylor subsequently registered as the proprietor of the property in 2007.

In 2008, a Mr Taylor secured a mortgage from Barclays Bank for £80,000 and began some renovations. It was at this point that Mr Antoine first became aware of the fraud.

The court confirmed the fraud, and rectified the register to name Mr Antoine as the rightful owner. However the court found there had been no mistake in the registration of the Barclays mortgage, because Mr Taylor had at the time been the legally registered proprietor. It found that the bank’s mortgage should remain on the title, the point in question on the appeal.

Mr Antoine claimed that the Land Registry had made a mistake when it registered the mortgage. The Court of Appeal however dismissed Mr Antoine’s claim, confirming the original judgement that the Land Registry did not make a mistake when it was registering the mortgage.

The judgement confirmed that if registering the Barclays mortgage was correct at the time of registration it could not be a mistake and could not be rectified as such. Although the judgement is no surprise, the case is testament to the importance of updating the Land Registry following the death of an owner.

If a person owns property when they pass away it is important to engage legal experts to ensure the property is correctly transferred to the beneficiaries entitled.

However if this cannot happen immediately, an executor or administrator should at least update the address for service, and sign up for the Land Registry property alerts. These alerts provide email notification whenever there is an action on the property.

You can also register a restriction on the property which requires a conveyancer’s certificate to confirm the identity of the registered proprietor if they are trying to sell or mortgage the property.

These steps will often deter a fraudster, or will at least make an executor or administrator aware more quickly of any attempted fraud or untoward activity on the register.

If Mr Antoine had set up a property alert, a relatively easy exercise he would have been made aware of the fraud before Mr Taylor could secure the mortgage.

Published: 23 January 2019

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January 2019

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Safeguarding a loved one's property from fraud

January 2019

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Safeguarding a loved one's property from fraud

January 2019

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