Court of Protection
Advice on management of jointly owned property - s.36(9) / s.54 Applications
If your co-owner can no longer manage their affairs, you cannot simply proceed with a sale — even if you're already their Deputy. A Court of Protection application is required first, and we can guide you through it.
Why this situation arises
When two or more people own a property together, they are legally both Trustees of that property — even if most people have never thought of themselves in those terms. For everyday purposes this makes no difference. But when one owner loses mental capacity, the other Trustee can no longer act on their behalf, and the property cannot be sold without court involvement.
This applies even if you already hold a Deputyship Order for property and financial affairs. A Deputyship does not give you the authority to act as Trustee — a separate Court Order is needed.
You cannot sell the property without making a court application first. Estate agents cannot progress a sale until this is in place. Delays can cause real financial and practical difficulties for you and your family.
What the application involves
The application asks the Court of Protection to formally replace the person who lacks capacity as Trustee and appoint someone else to act in their place. Once this Order is granted, the sale can proceed.
01
Application to the Court of Protection to replace the co-owner as Trustee, under s.36(9) or s.54 of the Trustee Act 1925.
02
Court issues the Order appointing a replacement Trustee — typically a family member, solicitor, or other suitable person.
03
The sale can proceed with the replacement Trustee acting alongside the remaining co-owner.
Other types of trust are also covered. Our team can assist with applications where a Trustee has lost capacity and has a beneficial interest in any other type of trust — including Will Trusts.
How Rothley Law can help
Our specialist Court of Protection team handles these applications regularly. We’ll guide you through the process efficiently — explaining exactly what’s required, preparing the application, and keeping things moving so delays don’t put your sale or your plans at risk.
If you’re in this situation, it’s important to take advice as early as possible. The sooner the application is underway, the sooner the sale can proceed.
Trying to sell a property where a co-owner has lost capacity? Talk to our team — we'll tell you exactly what needs to happen and how quickly we can help.
Frequently Asked Questions
Can I sell a jointly owned property if my co-owner has dementia?
Not without a Court of Protection Order. When a co-owner loses mental capacity, they can no longer act as Trustee to allow a sale to proceed. A formal application must be made to the Court to appoint a replacement Trustee before the sale can go ahead.
Does a Deputyship Order allow me to sell a jointly owned property?
No. Even if you hold a Deputyship Order for property and financial affairs, this does not give you the authority to act as Trustee of a jointly owned property. A separate Court Order is required specifically to replace the co-owner as Trustee.
What is a Trustee application to the Court of Protection?
A Trustee application is a formal request to the Court of Protection to replace someone who lacks mental capacity as Trustee of a property, and to appoint someone else in their place. Once granted, the Order allows the sale to proceed. This is also sometimes referred to as a s.36(9) or s.54 application under the Trustee Act 1925.
How long does a Trustee application take?
Timescales depend on the Court’s workload and the complexity of the case, but most straightforward applications take several months. It is important to begin the process as early as possible, particularly if you are relying on the sale to fund care costs or other time-sensitive needs.
Can I instruct an estate agent before the Court Order is in place?
You can begin conversations with estate agents, but they will not be able to progress the sale until the Court Order is in place. Marketing the property before the Order is granted is possible in some cases, but exchange and completion cannot happen without the formal authority to act.
Does this apply to other types of trust, not just property?
Yes. If a Trustee who holds a beneficial interest in any type of trust — including a Will Trust — loses mental capacity, an application to the Court of Protection may be needed to allow the trust to be properly administered. Our team can advise on the options in these circumstances.
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