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ukfamilysolicitor
ukfamilysolicitor, Family Solicitor
Category: Family Law
Satisfied Customers: 837
Experience:  Divorce, Finances, Children, Domestic Violence, Care Proceedings
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I have a house with an ex-partner. The house is mortgaged

Resolved Question:

Hello,
I have a house with an ex-partner. The house is mortgaged with both myself and ex named on the deeds and mortgage application. Tenants in common I believe.
There are two Children from the relationship (6 + 4) We did not marry.
We separated and I live elsewhere, the children usually reside with their Mother at the mortgaged property. Contact and Child Maint are not a concern.
I would like to remove my liability from the mortgage - either through sale of the house now or transfer of ownership (with an interest until the youngest is 18). I am not sure that my ex has the financial provision to take over the mortgage or buy me out.
I have attended Mediation however my ex has declined to participate so I now have my Initial mediation documentation and will proceed to raise an order in court. I am not clear on which form this should be completed on C1 or C100?
Can you clarify please which order I need to raise and on which form so I can submit this to the combined courts family section.
Thanks.
Submitted: 1 year ago.
Category: Family Law
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Thank you for your question. I am a family Solicitor and have also trained in Civil Litigation Matters.
Before you make any application to the court it is important that you establish whether or not you are Tenants in Common or Joint Tenants.
If you are Tenants in Common this will mean that you have a distinct and separate share of the property. If you are a Tenant in Common - did you sign a trust deed at the outset dealing with matters such as disposal of the property? if you did you should submit this with your application to the court.
As you were not married you would not actually submit your application to the family section. You still submit your application to the family court but to the civil section.
The area of land pertaining to your application is The Trust of Land Act.
You are asking the court to consider making an order for sale.
The Form that you need to complete is Form N208. More commonly known as a Claim Form (Part 8). You would also need to provide a written statement in support of your claim.
Please note that in deciding whether to order a sale or declare a person's interest in a property the Court must take into account the following factors which are set out in Section 15 of the Act.
The intentions of the person or persons (if any) who created the Trust;
The purpose for which the property is subject to the Trust is held (ie, the current purpose rather than the original purpose);
The welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the Trust as his home and;
The interests of any secured creditor of any beneficiary and the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in the property subject to the Trust (or in case of dispute) of the majority (according to the veil of their combined interests).
Kind Regards
I would be grateful if you could kindly rate my answer. I have only recently registered as an expert on this site and feedback is greatly appreciated.
Expert:  ukfamilysolicitor replied 1 year ago.
I would be grateful for positive feedback
Kind regards
Customer: replied 1 year ago.

Hi,

Thanks for your reply - apologies its taken be a bit longer to get back than I expected. Its a great answer and I'll be happy to give highly rated feedback.

Does the order to sell also cover an order to transfer the house into a sole named person?

I've checked and the house is as joint tenants so I have no additional information to provide on that front.

What is the fee for submission of this CPR8 to the court? I wont get any legal expenses paid.

Thanks again!

Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Thank you for your kind comments.
It the court made an order for sale of the property - the the transfer would be to the buyers.
If one of you wanted to keep the house and buy out the other - then the court would order that legal title would be transferred upon payment of the amount ordered.
Please do bear in mind that any order a Judge makes in relation to the transfer of a legal title doesn't bind a mortgage company. The mortgage company would need to be satisfied that the person retaining the property could satisfy the mortgage on their own. This could take time.
A claim under Part 8 for order of a sale is classed a non monetary claim. An application sent to your local county court is currently £280.
Kind Regards
Caroline
Customer: replied 1 year ago.

Thanks Caroline,

One final question on possible proceedings. So you've said that if the Judge rules not to provide an order to sell but say transfer legal title that could still mean I'm liable for the mortgage even if the ex partner was unable to sustain that mortgage? if the mortgage company doesn't believe the mortgage can be paid by my ex..? How should I indicate that I would like to move on and be able to obtain my own mortgage with new partner in the claim?

Thanks again

Expert:  ukfamilysolicitor replied 1 year ago.
Hello
yes - you are correct - if the property was transferred to your partner and she failed to pay the mortgage then the mortgage company could pursue you if you haven't been released from the mortgage.
You could ask that your partner indemnifies you as part of an order. This would mean that if you were pursued and had to pay then you would then be able to commence a claim from the monies from your partner - however in reality - if she cant pay the mortgage - then how will she pay you.
Since you have also confirmed that you are joint tenants and not tenants in common - you should also consider serving a notice on your partner to server the joint tenancy. If you dont and you pass away then your share would go to your partner under the right of survivorship.
Kind Regards
Caroline
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