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Joshua
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi Ive been with my partner for 8 years now, and we currently

Resolved Question:

Hi I've been with my partner for 8 years now, and we currently both live in the property he owns with ex partner, she defaulted on the mortgage for quite a few months when she lived in the property, after they split up, incurring a £2000 debt, which my partners parents paid off for us. During this time my partner continuously paid his half of the mortgage but obviously each month there was a shortfall. We're currently looking to change the name on the mortgage from her name to mine, and then sell the property so that we can get a bigger place. My question is, as she defaulted, and has had nothing to do with the property for 8 years, is she entitled to anything, and can we prevent her from getting any equity the property may have gained. If i'm right I think the mortgage has now started to gain equity. They also have personal loans within the mortgage that I'm willing to take on if she agrees to sign the house over with no rights. Thanks.
Submitted: 3 years ago.
Category: Family Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask if your partners ex put into deposit down for the property originally please?

Joshua :

Is the mortgage a capital repayment or interest only mortgage?

Joshua :

Has she put any other capital into the property since buying it - e.g. improvements etc?

Customer:

Hi I believe she may have put a very small amount into the deposit if any at all? I think the mortgage was fixed for three years, and is now on a variable rate, and that they are paying interest only at the moment? She hasn't no other capital into the property, but the house was an absolute state when we finally got her out, and myself and my partner had to fully redecorate throughout the house, and we're currently sorting the kitchen and bathroom ready for sale out of both myself and my partners own funds.

Joshua :

Thanks. Do you think the mortgage has always been IO or has it ever been capital repayment?

Customer:

I think it's always been i/o

Joshua :

Thanks. As you will be aware unmarried partners are not entitled to any claim on the others assets in the event that they split up. Accoring ly his ex is entitled to the return of what is hers and nothing more.

Joshua :

Do you know if they entered into any form of declaration of trust when they purchased the property?

Joshua :

This is an agreement setting out who owns what share of the property

Joshua :

Finally was there any equity in the property at the time they split up? If so could you guestimate roughly how much?

Customer:

Ahh that is fab I've just found that the mortgage was both capital and interest and that the interest is now paid off so they are now paying off the capital, sorry we are now paying it off as I pay him the money for the mortgage, no the property was in negative equity of around £10,000 when they split plus the £2000 debt she incurred.

Customer:

There was no declaration of trust no.

Joshua :

Thanks. Based on what you say at the time the split up the property was n negative equity so at that point she would have owed half the debt against the mortgage - £10-11K from what you say. In terms of the payments you and your partner have made since that time, there is no presumption that his ex would be entitled to the benefit of these payments (as you would expect).

Customer:

Brilliant so we can get a legal document made up ensuring she signs the house over with no entitlement?

Joshua :

Accordingly based on what you say I cannot see that it is likely that she would be entitled to any share of the property at all unless she could show that the property has naturally increased in market value irrespective of your improvements so as to take the property into positive equity naturally which would require a substantial increase in property value and even then there is the question of her liability for the mortgage. This would be the only basis on which she could conceivably frame a claim

Joshua :

There is obviously the question of her liability for the mortgage and debts to set against the above in the event she were to attempt the same so all in all I cannot see that it is something that is likely to be realistic for her to pursue unless the property price has risen astonomically in the last 8 years.

Joshua :

The approach to consider is first for you and your partner to approach the lender or another lender and ascertain whether you can jointly obtain a mortgage so as to take a transfer of the property from his ex. If this is possible then an approach can be consider to his ex along the lines that you are jointly willing to pay off her debt on the basis that she transfers the property to you jointly.

If she refuses then it is a question of asking her to buy out your share from you or that she trasnfers the property to you within say 2-3 months failing which you will have little choice but to issue a claim under the Trusts of Land and Appointment of Trustees Act to force a transfer of the property into your names if she cannot afford to buy out your equity shares in the property.

Customer:

Well it has gone back up in various,he but still less than what they had paid for it, it's only gained equity because of the current value and the payments that have been made. Do you now the average cost that a solicitor will charge for a change of name on the mortgage?

Joshua :

Ideally a TLATA claim would be avoided as there are legal costs of pursuing such a claim but it is a fallback option if she refuses to cooperate and mediation fails.

Joshua :

If she does agree to cooperate then assuming there are no issues with you getting a joint mortgage together then you simply have a trasnfer of equity and remortgage transaction to complete. Solicitors will likely charge in the region of £500 + VAT to complete a transfer of equity and remortgage though you will find some that charge more and some less with some shopping around.

Customer:

Thanks so much for your help, it's been very helpful indeed.

Joshua :

A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Customer:

Thanks again :-)

Joshua :

Best wishes

Joshua, Lawyer
Category: Family Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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