Can you legally force someone to sell a house? What does being sectioned mean for a house sale? All this and more below...
When your partner becomes sectioned it isn't easy, especially if it coincides with your house sale. Selling your house is stressful enough without having to consider your partner's wellbeing too. Not to mention coming to terms with what sectioning actually is and how it'll impact your personal life, as well as the relationship between mental health and housing. It's all rather a lot to take in. However, it's important for you to know you're not alone.
Data from the Centre for Mental Health predicts that up to 10 million people will need additional or new mental health treatment as a direct consequence of the recent COVID pandemic. A lot of whom will find themselves landing in much the same situation as you - trying to sell the biggest asset you own at what feels like one of the worst times of your life.
Saying that though, it doesn't have to feel like this. That's why we've written this article. To answer all your questions about mental health and housing and show you just how easy it can be to sell your house when your partner has been sectioned.
Here for something in specific about mental health and housing sales? Use the menu below to navigate to the most relevant section (no pun intended).
- What does having mental capacity mean?
- What is the Court of Protection when selling a house?
- Who can make decisions for someone who lacks capacity?
- Can you legally force someone to sell a house?
- How do I get Deputyship?
- I've got Deputyship - How can I sell the house FAST?
Mental capacity is classed as the ability to make your own decisions. Therefore, for someone who’s lost their mental capacity, making wise or smart decisions isn't always possible. Important to recognise when they'll potentially have to make crucial decisions like whether they whether they should sell their house. Not one of the easiest decisions to make as it is, never mind when you've been sectioned.
Why someone would be classed as not having the mental capacity to make such decisions, would be because they're unable to do one or more of the tasks below...
- Understand information that’s provided to them.
- Retain information for a long enough period in order to make a decision.
- Weigh up the information and assess it to make the decision.
- Communicate their decision affectively.
In the event someone has lost mental capacity (i.e. can't do one or more of the things above), it’s possible that for the good of their health, that person can become sectioned. Sounds a scary term, but all it really means is that they'd be kept in hospital, a psychiatric ward or clinic under the Mental Health Act of 1983. This could be the case because of fears for their own personal safety or indeed the safety of those around them. Due to their inability to make decisions, they're also liable to be given treatment without their consent.
While it can be a difficult time for everyone, be they a friend, family member or the person who has been sectioned, it's worth remembering that sectioning someone is a last resort. Plus, it's usually done because of personal safety and in many cases, it can save lives.
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A mistake you should never make when dealing with someone who's lost their capacity, is thinking that they no longer have any rights. They do. The Court of Protection is the body that ensures these rights are properly represented. They're also who you'll need to approach if you wish to have a say in issues surrounding their finances and welfare.
Their responsibilities of the court include...
- Deciding whether someone has the mental capacity to make their own decisions.
- Choosing who is appointed to make decisions for the person who lacks in capacity.
- Assessing emergency applications for anyone looking to act on behalf of someone.
- Considering applications made for statutory wills or gifts on behalf of the person.
- Deciding if someone can be deprived of their liberty in relation to the Mental Capacity Act.
*The Court of Protection is based in London. Usually cases are dealt with by senior and district judges, although high court judges can sometimes be involved too.
The person who's legally permitted to make decisions for someone who lacks mental capacity goes by the name of the Deputy. In order to be appointed, the Deputy be approved by the Court of Protection. How to get approved we'll get onto a later.
Think of being a deputy as like a mental stand in. In essence, someone who assists another less capable person with making decisions that are in their best interest. Speaking of decisions, there’s two types of deputy. Which type of deputy you are, will determine what decisions you re authorised to make…
Someone who's this form of deputy, has the ability to make decisions about the medical treatments which are given to a less capable person. They also have the right to decide how they will be looked after. For instance, if someone has dementia, their Deputy for Personal Welfare may be their spouse or a close sibling.
If you wish to sell a house on behalf of someone who lacks capacity, then this is the type of deputy you need to become. Do so and you’ll be responsible for handling their financial affairs and making decisions to do with their assets – one of which is their property.
*Regardless of which Deputy you become, you should also receive support from a part of the government called the Office of Public Guardian (OPG). An agency sponsored by the Ministry of Justice who will offer you support in your role and also make sure you’re acting in the person’s best interests.
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Technically, no - you cannot force anyone, even someone who lacks mental capacity, to sell their house. But what you can do is facilitate it. By that we mean that if you believe it to be in someone’s best interest to sell their property, then as a Deputy for Property & Financial Affairs, you can intervene and override their decision.
For instance, if upkeep for someone's property is expensive, then from a financial perspective you could argue that a sale is the best course of action. This is a particularly popular choice for those with flats, due to pricy ground rents and service charges. But also if a property is left vacant or whoever's living there can no longer afford the upkeep since their partner's being sectioned.
However, it’s important to remember that deputyship does NOT give you the right to force a sale - you’re there to assist, remember. Regardless of a person's mental condition, they still have rights, so before even trying to sell a house, you must...
- Seek the person’s decision before intervening
- Evaluate their decision and reasoning
- Consider the outcome of overriding their decision. Would it be in their best interests?
Only then can you decide to sell their house without their consent.
If I didn't want to sell, could I buy them out?
If you are their Deputy for Property & Financial Affairs, then yes, you could buy their share of the property. It may take a lot of paperwork and explaining to do so, but it's definitely possible. You could also rent it out too if you were looking to retain the house and gain a second income.
But before you do, be sure to speak to your lender. Instead of buying out their share and applying for a new house repayments, you may be able to simply transfer the existing house repayments into your name.
However, if you've not been appointed to deal with their financial affairs, then buying their share of the property may be a lot harder. You'd likely have to negotiate with the person who's been appointed to deal with that and come to an agreement that way. Think of them as a middleman between you and the asset.
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In the case you've been granted power of attorney, you may not have to apply for Deputyship. However if you do, you can expect to incur a cost of £385. This funds your application to the Court of Protection. It's also worth noting that this figure may increase if there's a need to appeal at a later date.
To apply to the Court of Protection to gain the right to sell a property belonging to someone who is sectioned, you'll have to complete the following...
- Application form
- Witness statement
- Copy of HM Land Registry document entry
- Copy of conveyancing report if the property is unregistered
Once you've done that, you then have just 14 days in which to inform the person who's lost capacity that you're looking to list the house for sale. Not exactly the most pleasant task, especially if they were firmly against a sale in the first place, but it's a necessary part of the process. Without it, you won't be able to proceed. You'll be required to do this by issuing a notice or an acknowledgement form, officially known as a COP15 and a COP5. You must then inform the court that this has been issued within the next 7 days.
Only when you receive notice that a decision has been reached, should you then proceed with the sale of the property. If your request is rejected, you have a further 21 days in which to dispute it.
So now you've been earned the title of Deputy and had your request to sell the house approved by the court, your next job is to fathom how you plan to sell it. Of course, your first reaction will probably be to go see an estate agent and get it listed on the open market, however that's not to say it's your only option. In fact, you have many. So here's a list of the main three in order of slowest to fastest...
List your property on the open market
Hands down the slowest way to get your property sold is likely to be on the open market. According to The Advisory, if you choose to sell your house using this route, you'll be waiting on average 4 months for completion! Not only that, but you'll have to deal with viewings, photographers, picky buyers and maybe even do some additional D.I.Y if the agent isn't drumming up enough interest. Not ideal.
Get down the auction house
If you're after a faster sale then an auction house could be better option. Go to auction and your house could sell on the day, which means you'll receive a 10% deposit from your buyer, as well as the remaining funds in the next 30 days. However with an auction there's also the risk your property doesn't sell. Be that because you've priced it wrong (rookie mistake) or the auction house doesn't attract the right sort of buyer on the day. Therefore, you could end up having to wait another month for the next auction to be held. Hardly a short sale. And even if you do sell, auctions come with a whole catalogue of fees, including marketing charges and commission of at least 2% etc.
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