Hi Bev

 If the owner has been dead for two years who is paying the mortgage?

 I would be surprised that the bank has not started to take action if they have not been paid, so it might be worth having another chat with them.

 They are unlikely to provide you with much information as a result of data protection.

So we serve a section 235 Notice under the Housing Act 2004, requiring them (as they have an interest in the property) to provide a copy of the loan agreement, level of outstanding debt, level of arrears and contact details for the owner (address, email and phone number). Will struggle to provide the latter information unless they have a  Wegie board / Ouija board.

The other way we try and find out the financial position is to do a credit check on the person i.e. Experian. However, data protection again prevents us from doing this in general

The way around this is to serve a section 16 LG (MP) Act 1976 on the owner – doesn’t get returned within the 14 days, you are then investigation a criminal offence and can rely on an exemption under  Section 29(3) Data Protection Act 1998.

The Experian report should provide the level of mortgage and whether the owner is in arrears etc.

I would always suggest a softly softly approach where your dealing with someone that has recently died (even two years), there are a host of reasons  why people do not want to get involved, as Nick mentioned in another post “Inheritance taboo “

If there is a son then you need to have a chat with him if at all possible as he would be the main person entitled to the estate. Get the information directly from the horses mouth and identify any issues , try and deal with them. If there is no value in the estate then that would be a reasonable ground for them not to apply for probate. Ex wife may have an axe to grind and may not be acting in the best interests of the son.

There is no legal requirement to make someone apply for probate if they do not wish to do so.

Assuming that the Mortgage Company is not going to take action and you want to resolve the matter, then the enforced sales procedure as you have described can be pursued.

The main issue with the enforced sales procedure is to ensure that you serve any notice correctly and can prove good service.

Ensure the legislation that  you want to use is appropriate for the enforced sales procedure, the Housing Act 2004 is very good as any charge binds all estates and interests and takes priority over the mortgagee

Therefore, the running order is as follows:

I am assuming that the land is registered with the district land registry. There are additional caveats if the property is unregistered

• Land Registry Title - confirms that it is owned by Andrew Lavender - usually registered at the empty property
• Establish that the owner is dead and do not rely on what your CT department have on their records. Visit local office or you can search at www.gro.gov.uk , costs about £20 from memory. This will give you the death certificate, DOB,  informant details etc.
• Once you have established that he is dead, you need to establish whether probate has been granted.  You do a standing search at the York Office £6ish http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/probate/standing-searches.htm
• If probate has been granted it will state the Executer and this is the person that the notice should be served on (the name and address as stated in the grant of probate”
• If probate has not been granted then the estate still vests in the deceased and therefore you serve notice on him. I tend to go a bit over the top and serve it on “Andrew Lavender” & Personal Representative of the deceased “Andrew Lavender”.
• In addition you must serve a copy of the notice on the Public Trustee “ REGISTRATION OF NOTICES AFFECTING LAND PURSUANT TO SECTION 18 LAW OF PROPERTY (MISCELLANEOUS PROVISIONS) ACT 1994” cost £40 ish. http://www.justice.gov.uk/downloads/global/forms/ospt/pt_titleondeath.doc. Most LAs omit this step as they are not aware of this provision.
• You must ensure that the notice is served correctly. You can usually rely on Section 233 Local Government Act 1972, but most legislation has their own particular section. If you have a look at Section 246 Housing Act 2004, this covers the relevant elements. You have to make reasonable enquiries and after doing so  can then rely on serving the notice at the empty property and serving the notice on Andrew Lavender & personal Represnatative of the deceased Andrew Lavender ……….. as indicated above..

 I would suggest that undertaking the above, would ensure that you have exhausted the reasonable enquiries element of this section and therefore you should be able to prove good service.

 If you pursue the enforced sale you must ensure that you obtain best price (usually auction) as you have a fiduciary duty to the other lender or other charge holders.

 Have a chat with the son to see how the land lies, establish the Mortgage Company position and then make an informed choice.

Hope that helps

 Regards

 Andrew Lavender