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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33311
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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hi I need your advice please. I have a joint mortgage with

Customer Question

hi I need your advice please. I have a joint mortgage with my ex partner. the property is worth approx. £110K with £78K remaining and £6.5K arrears. I have suspended reposession as my partner left me in Jan. 2011 and paying nothing since he left. I have managed to make full payments since July 2012 on my own. The mortgage is a repayment basis as the lender does not offer interest only (First Active). We have a daughter together and I am the main carer.
He wants his "share" out of the property - title deeds are registered 65% (me) and 35% him.
Can he force me out of the house or can i request a postponed sale until my daughter finishes her education. Secondly what would he be entitled if I wanted to buy him out? bringing in mind he has paid nothing since vacating and there are arrears>
I received a letter today from his solictors asking me to sign authority for me ex to obtain title deeds from the solicitors involved in the sale and authority for him to contact the bank re details of all payments made. Do i have to do this as I am not stopping him from obtaining the information? If I do not agree to this he will make an application to court. I have no money to defend this.

He is only interested in his share of the money - i dont know what to do for the best
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
How old is your child and does he pay child maintenance
Please confirm that you are not married to each other
Clare
Customer: replied 2 years ago.

Hi Claire,


We were not married but together for 8 years. I have one child with him who is 9 years old next month. I am the main carer for my daughter and I receive maintenance of £25.00 per week for her through the CSA


Thank you.


Jackie

Expert:  Clare replied 2 years ago.
HI
Do you have a new live in partner?
Clare
Customer: replied 2 years ago.

No Clare, I have lived on my own with my daughter since we split in Jan 2011

Expert:  Clare replied 2 years ago.
Hi
Then I suggest that you write to his solicitors and ask why they wish to have a copy o t he sale file since they can obtain copies of the title deeds from the Land Registry and as a joint borrower your ex can obtain a copy of the annual mortgage statement.
Inform them that if any attempt is made to apply for an order for sale then you will make an application under Schedule 1 of the Children Act for the right to remain in the property until your child is 18 - and to claim the costs of having to make that application
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 2 years ago.

If it does go to court will it have any bearing that he has paid nothing since leaving re. the mortgage. He is currently with a new partner and I assume they wish to get a mortgage together. (1.5years).


 


If I also look to settle to get him off the mortgage. Can you advise what sort of settlement figure I am looking at?


 


What does it cost to take me to court regarding the property


 


What is an application under Schedule 1 of the Children Act for the right to remain in the property - do I have a strong argument for this?


 


Sorry for all the questions

Expert:  Clare replied 2 years ago.
Hi
You have an excellent argument to remain in the property and are likely to succeed in any Schedule 1 application
I am afraid the fact that he has not paid anything other than child maintenance since he left is unlikely to be of any assistance since he has not been living there and you have
To pay him off he is actually entitled to something like £8,000 - and being released from the mortgage, but clearly whilst it is in arrears you cannot get him released.
If you could then it would be worth offering him £5,000 if he takes it now in full and final settlement
using a solicitor to take you to court is likely to mean a bill of £3000 to £5000
Clare
Customer: replied 2 years ago.

so if he is entitled to 8000 approx. can i take into half the arrears and knock that off the settlement?


 


Is there anyway that I can get some sort of order through the court if a settlement is agreed that stops him from having any sort of claim on the house afterwards

Customer: replied 2 years ago.

can i also confirm that the deeds will stand in court. The deeds were loaded in my name as my mother lent me the initial deposit. This was repaid through our joint account. I ask this as his has had the nerve to contact my 74 year old mother and stated that he will request her as a witness in court - can he do this?

Expert:  Clare replied 2 years ago.
Hi
That figure takes the arrears and potential costs of sale into account
If the Declaration of Trust states that this is the division then whether or not the monies have been repaid are not relevant - and in any event that is a lot of effort to put into an argument over £3500 - which is all that it is
Clare
Customer: replied 2 years ago.

I am sorry I dont under about the declaration of trust - what does this mean?


 


Can I get an order through court to pay him a certain amount i.e.£5K and he has no further claim?


 


Does my mother have to go to court as a witness for him

Customer: replied 2 years ago.

I am sorry I dont under about the declaration of trust - what does this mean?


 


 


 


Can I get an order through court to pay him a certain amount i.e.£5K and he has no further claim?


 


 


 


Does my mother have to go to court as a witness for him

Customer: replied 2 years ago.
Relist: Answer came too late.
Expert:  Clare replied 2 years ago.
Hi
My apologies I have been offline.
The Declaration of Trust is the Document that sets out what share you each have in the property
If either of you wish to vary this then there will have to be a court application under the Trusts of Land and Appointment of Trustees Act for the court to decide if this should be amended (unlikely)
The only basis on which you could offer him a lower share is via negotiations and then only if you could also get him released from the mortgage which will not happen whilst there are arrears
Technically your ex could call your mother as a witness but it is unlikely to be of any assistance to the case
Clare
Customer: replied 2 years ago.

Hi but the title deeds state how much share either of us have in the property. Will this not stand up in a court of a law?


 


If any agreed sum can be reached through negotiations can a document be drawn up so that he has no further claim to the property although his name will remain on the mortgage until the arrears paid?


 


If I went for a postponed sale would he be entitled to his share of the equity at the point when the child reaches 18. What i am saying in that the house may have increased in price and secondly I would have paid off the majority of the mortgage so his liablity would increase considerably


 


 

Expert:  Clare replied 2 years ago.
Hi
Yes it will stand up unless your ex can prove that you and he amended the agreement in any way
Yes a new Declaration of Trust can be drawn up if you reach a new agreement
If the house is not sold until your child is 18 then he will get 35% of the equity then
You could consider changing to an Interest Only mortgage if this concerns you
Clare
Customer: replied 2 years ago.

I can not change to interest only as the mortgage company will not do this.


Is there any way something could be put in place to prevent my ex from claiming this. i.e. an agreement drawn up by a firm of solicitors

Expert:  Clare replied 2 years ago.
Hi
Yes if you and your ex reach an agreement a further Declaration of Trust can be drawn up
Clare
Customer: replied 2 years ago.

So am i right in thinking that if I can reach an agreed sum now re settlement regardless of whether the house is sold now or when my daughter reaches 18 I can get a further declaration of trust to state this is all that he will receive from the sale. i.e. if we agree on £8K and I continue payment the mortgage as is thats all that he will get

Expert:  Clare replied 2 years ago.
Hi
Yes IF that is what he agrees - but he would be foolish to do so since all he actually has to do is wait and get the amount he is entitled to anyway
Clare
Customer: replied 2 years ago.

I understand that. I understand that he is entitled to his share but i want to know if there is anyway i can stop him from benefitting from any additional payments that I make whilst I can remortgage to interest only. Will a judge think it is fair for him to profit say in 10 years time from the additional equity there is in the house at that stage when he will not have made any payments.

Expert:  Clare replied 2 years ago.
Hi
Yes I am afraid so - because that is what was agreed - and it is entirely possible that the court will see this as fair since he has had to wait for his funds
Clare
Customer: replied 2 years ago.

so basically the law is an ass - is there no way possible I can pay him off in agreed installments and have this drafted up via law

Expert:  Clare replied 2 years ago.
Hi
As I said - if he agrees then it is possible - so if he wants any money in advance then no doubt he will sign it as otherwise he has to wait
Clare

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