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Thomas
Thomas, Solicitor
Category: Family Law
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Experience:  UK solicitor
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I have a joint repayment mortgage with my ex. She left me 4yrs

Customer Question

I have a joint repayment mortgage with my ex. She left me 4yrs ago and stopped contributing financially to the property. When she left the property it was in negative equity. I've recently sold the property for less than the initial mortgage taken out on it, and the equity that has resulted is the result of the last 4yrs mortgage payments by me. Is she entitled to any payment? I can prove she hasn't paid, so can I claim back the payments from her? She wants 50% of the sale!
Submitted: 2 years ago.
Category: Family Law
Expert:  Thomas replied 2 years ago.
Hi,

Did you execute a declaration or trust with her stating your respective percentage interests in the property when 1) you purchased it or 2) she left or 3) any time thereafter?

Have you simply agreed a sale with a purchase but have not completed yet?

Kind regards,

Tom
Customer: replied 2 years ago.
No to both the above. She wanted to stop paying the mortgage to allow her financial freedom to rent in London ! Cause the flat was in negative equity neither of us could afford to sell or remortgage. So she agreed to remain on the mortgage and walk away!

Just agreed the sale
Expert:  Thomas replied 2 years ago.
Drafting your answer now. 5 mins please.

Kind regards,

Tom
Expert:  Thomas replied 2 years ago.

Hi

Thank you for your question and patience, I’m Tom and I’ll try to help you.

First of all, if you and you partner presently hold the house jointly (as joint tenants, rather than as tenants in common) then each person's share would pass to the other upon death regardless of any directon made in any Will. If this is not what you want then you should sever the joint tenancy by using Form SEV from the Land Registry (you will have to send it to them and if you have any questions about completing the form you should call their customer service number - they are very helpful):-
http://www1.landregistry.gov.uk/publications/?pubtype=49


You will then hold you interests as tenants in common, meaning that your respective shares will pass according to their wills or under the intestacy rules. Your partner need not sign the form provided you follow the instructions.

In the absence of any express agreement there is presumption that the proceeds of sale are split equally. Unless there is a declaration of trust (for which you must hold your property as tenants in common) then there is a presumption that each party retains a 50% interest in the equity in the property.

If one person has maintained the payment of the mortgage for a considerable time and/or contributed more when purchasing the property initially and the other party has not contributed to the household expenses at all then the person can attempt seek to claim a greater interest by litigating. However, litigation in this area is very expensive (there is no legal aid) and can take a long time if the other party disputes This would be litigation under the Trusts of Land & Appointment of Trustees Act. Four years mortgage payments is the sort of thing that can potentially form the basis of litigating to claim a greater sharer.

Basically, if she is not budging from her 50% then the only way that you would be able to claim more would be by litigating and paying legal fees. It can also take quite a long time, so if she were minded to dispute and defend your claim then the length of time it would take at court would prejudice all but the most patience buyer.

It’s a massively unfair position for her to take, but I would consider stating that you consider it so unequitable to demand 50% in the circumstances that you will litigate under the above legislation and invite her to make an alternative offer. If she sticks to her guns then you will have a difficult decision to make.


My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.


Kind regards,


Tom

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