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Most of you have probably never heard of a "liferent", which is the unusual legal problem I'm facing, so here's a short explanation of it, followed by a rather longer explanation of the situation this has put me in.

Liferent is a peculiar piece of Scottish law that was in decline but seems to have made a comeback in recent years. Essentially it grants an individual (the liferenter) right of occupancy of a property for the rest of his or her life. Even more worrying is that the right of occupancy extends to giving the liferenter the right to rent the property out to a third party.

So how does all this affect me? Well, about 10 days before I was due to move in, my solicitor discovered a liferent agreement exists on the property. I am particularly annoyed that I was not informed of this sooner by anyone, not the seller, not the estate agents (who, to be fair, may not have known), and certainly not by the seller's solicitors who failed to pass ANYTHING at all to my solicitor for a period of over 4 weeks, and even then the one document we received was incomplete. Frankly, I am so incenced by their behaviour and, in my view, incompetence that I fully intend to report them to the Law Society when this is all finally over.

The liferenter (Mrs Winkelmann) was the partner of the person selling the house. (I think he must have set up the liferent agreement for her.) Unfortunately for her, she is in the advanced stages of Alzheimer's Disease and now requires full-time care in a nursing home. Because of her dementia, she is not, and never will be, in a position to live here again, and nor could she manage to arrange rental of the property. In practice, therefore, she will never be able to take advantage of her liferent.

The problem is, a liferent agreement remains in existence until the death of the liferenter, just as the name suggests. Consequently, for the rest of Mrs Winkelmann's life, I will find it difficult to sell the house because no lender is willing to offer a mortgage on a property that has a liferent agreement in force on it, and nor would I be able to take out a loan against the house, for the same reason. I don't even know if her life expectancy is nearer to a month or 30 years. My solicitor had also told me that the Registrar for Scotland was unwilling to sign the title deed over to me while the liferent agreement existed, and so we've been pressing the seller to take steps to have the liferent revoked. It now transpires that a Court is unlikely to revoke any liferent agreement unless it results in a financial gain for the liferenter, and so the long and costly process of taking this through a Court would probably be fruitless anyway. However, my solicitor has consulted with the Registers for Scotland and, with the appropriate proof of the situation (medical documents, etc.) it seems the title deed can be signed over to me after all.

So, to sum up, I should soon have legal ownership of the house (once the relevant documents have been received and one or two other things are in place) but I'll find myself in the awful situation of waiting for this poor lady to die so that I can finally feel the house is mine to do with as I wish. (I don't intend to sell or take out a mortgage, but you never know what's around the corner and I don't like to feel "trapped".) I am not happy about this situation, nor am I happy that I find myself wishing for this lady who I've never met to pass on. I'm also not happy about the additional solicitor's bill I'll no doubt receive in due course. I AM, however, very happy with the views I can see every day. Well, every day that's not too misty or cloudy!

© David McHutchison (Deemacphotos)
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