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Interesting resulting trust case re SDLT 3% surcha

http://www.bailii.org/ew/cases/EWHC/QB/2019/1627.html

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This resulting trust property case shows I think that parents who buy a property 100% beneficially for an adult child (who does not own other property) who agrees to pay the mortgage in parent’s name (although often the parents pay things by way of gift/advancement that should not prejudice things) should not be subject to 3% SDLT surcharge (and should be entitled to FTB relief) should there be no written declaration of trust to that effect (HMRC tend to ask for a written declaration (per https://www.gov.uk/hmrc-internal-manuals/stamp-duty-land-tax-manual/sdlt...), but that may not have been done immediately after the purchase, so it may be a question of there being evidence pointing to a resulting trust).

http://www.bailii.org/ew/cases/EWHC/QB/2019/1627.html

It is also another case that effectively says mortgages taken out by undisclosed nominee legal owners for the beneficial owner are OK.

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12th Jul 2019 14:45

Sure. Who needs lawyers, when we have the Courts?

I'd love to know your definition of "OK", and from whose perspective you mean.

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to Tax Dragon
12th Jul 2019 15:51

"OK" means "unproblematic in practice from the fee paying client's perspective". I doubt anyone here (especially you) advises large bank lenders etc. on such matters!

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to Justin Bryant
12th Jul 2019 15:30

Unproblematic except that the lender in the case in question was seeking repossession and the judge noted that the lender would have to consent to the steps he urged upon the combatants (namely, the transfer of legal title and the novation of the mortgage). In view of the proceedings it had already initiated, I cannot imagine it has since given its consent to either step.

Whether or not I have advised (well, been involved in advising) banks is something for me to know and you not.

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to Tax Dragon
12th Jul 2019 15:50

But those were only issues coz the mortgage was not being paid and if your client doesn't pay their mortgage then that's their problem and not yours isn't it?

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to Justin Bryant
12th Jul 2019 16:10

Fair point, though issues tend to come to light when there are (other) problems.

Do you consider that Messrs Tahir and Faizi conspired to commit mortgage fraud? Do you consider that either of them did commit mortgage fraud?

Are you aware that mortgage fraud is a criminal offence? Do you think it is 'OK' for (finance) professionals to advise on such fraud?

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to Tax Dragon
12th Jul 2019 16:33

What has mortgage fraud got to do with this? You are a bit of a nutter I think (or possibly just clueless - the judgment does not say Mr T did anything fraudulent re the mortgage did it and furthermore there were no allegations re the same?), so I will end there (agreeing to transfer your beneficial interest in your mortgaged property (without informing the mortgagee) via a DoT or otherwise is not, without more, fraud to the extent you would otherwise have had a beneficial interest).

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to Justin Bryant
12th Jul 2019 16:32

Justin Bryant wrote:

You are a bit of a nutter I think.

That's a fair cop.

But I do know this (and I am sure you do too): there is no reason why the judge would say anything about mortgage fraud. The case wasn't about that. You are not really so stupid as to think that silence on a matter that was irrelevant to the judgment is the same as the court giving a judgment on that matter. Why do you (repeatedly) pretend to be?

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to Tax Dragon
12th Jul 2019 16:53

Tax Dragon wrote:

there is no reason why the judge would say anything about mortgage fraud....

...whether or not/even if such fraud had been committed (I meant).

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to Justin Bryant
12th Jul 2019 16:36

Justin Bryant wrote:

agreeing to transfer your beneficial interest in your mortgaged property (without informing the mortgagee) via a DoT or otherwise is not, without more, fraud.

Thank you. That was all I wanted you to say.

What about this judgment amounts to commentary on the "OK"ness of that action? That was your assertion.

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