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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33948
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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Following a divorce there is a court order to sell the

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Following a divorce there is a court order to sell the house, pay off mortgage and split remaining capital 50:50. On what grounds can one party prevent a sale of the house if a reasonable offer is made? Can they decline to accept an offer from the other party if it is greater than the amount that has already been accepted when offered by a third party I.e. Refusing to be bought out.
Submitted: 9 months ago.
Category: Family Law
Expert:  Clare replied 9 months ago.

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further information first

Why was the Order for sale made - why was there not an order that one buys the other out?

Customer: replied 9 months ago.
I presume because there would not have been any agreement for that. I had tried several times before the court order to buy him out but he kept asking for more and it was costing a fortune in solicitor fees having endless exchanges of letters. There was the added complication that whilst he had agreed to honour a verbal commitment to hand me over a field bought by my mother if was constantly being used as a bargaining tool with him threatening to Claim his rights to have of it. So my solicitor said the best thing was to get an order for sale that secured the hand over of the field also and then I could make my offer. I did this - the offer was ignored and three days later the current buyers turned up and made an offer which at the time I felt I couldn't match/beat so we accepted. There have been long delays in the whole process with the buyers insisting on a further reduction. I now want to ,ale a final attempt to buy the house now we have a clear amount that I know he has agreed to accept from anther buyer.
Expert:  Clare replied 9 months ago.

Right so this was a Consent Order.

Are you willing to cover the wasted Estate Agents fees if you buy your ex out?

Customer: replied 9 months ago.
This is the order - I thought it was a court order. I do not understand what you mean by 'waster' estate but my intention would be to offer slightly higher than current 'buyers' to buy him out and take out a mortgage that would cover the outstanding mortgage also. As I understand because the house has been on the market for over two years and because the estate agent contract is silent on the matter of a buy out such as this then there would be no costs to pay for them. Anyhow I see these as small detail - the big issue is what are my rights should he refuse to accept a reasonable offer? Does he have the right to continue to refuse even if we have this order to sell?
Expert:  Clare replied 9 months ago.

Who currently occupies the property?

I am afraid that you have been misinformed.

If you pull out of the sale now the Estate Agents can still charge their fees - would you be able to cover them?

Customer: replied 9 months ago.
Interesting as another solicitor here told me that if the contract is silent on this condition no fees were eligible and that because it has taken so long to sell the property that we could claim that they failed on the their service. The contract says that if the agreement is terminated by the client or the property is sold other than in circumstances entitling the Agent to a fee as stated in terms and conditions then client will pay a withdrawal fee of £0.Still if push came to shove I would cover the fees. The main question is what I can do if he refuses my offer.
Expert:  Clare replied 9 months ago.

I am sorry but the informtaion you were given is incorrect.

The fact that it took so long is irrelevant.

The contracts for the agents to produce purchasers willing and able to go ahead - and this they will have done.

I am afraid that the only way that your ex can be forced to agree to your purchasing the property is via an application to vary the Order - and that will only be granted if you are offering more than the current buyers AND are willing to pay all the wasted costs.

If you are willing to do this then it is worth threatening to take the matter back to court if he does not agree

Please ask if you need further details

Customer: replied 9 months ago.
He also was occupying the house because it was intolerable. The once this order was issued I found he was hardly every here. He was abroad most of the time with work that provided him a house or staying with his lady friend. I cam back to the property on several occasions to fund doors left unlocked, windows open and a bucket left to catch water leaking through the roof due to a missing slate. I therefore moved back here and he has threatened on several occasions to get the police but they are no interested. He accuses me of breaking conditions of order which adds to the complications. There has never been any issues of violence etc I was just naive to agree to these conditions unfortunately.
Customer: replied 9 months ago.
Can you explain what 'wasted costs' mean? And also why if we are liable then for estate agent fees would this not be split between us just as if we sold to a third party. I have in writing how much both of us will receive if the current sale went through - although there has been much dragging of feet here on the buyers side - so my intention would be to offer more than this. There would be no point offering less.
Customer: replied 9 months ago.
I also wonder what the value of the court order is then as either one of us could continue to refuse to sell regardless of price offered until it was taken to court.
Expert:  Clare replied 9 months ago.

If you go ahead and buy the property form your ex then the Estate Agents will still have to be paid - the costs will have been "wasted" since you will not in fact be selling

If you want your ex to agree to you buying him out he will want your assurance that these will be covered

If your ex wishes then he could apply to enforce the Order for sale by asking the court to sign the paperwork in place of you

Customer: replied 9 months ago.
I think I'm almost following. So I understand that estate agents fees with have to be covered. What I'm not quite clear about is why I would have to cover these solely if I bought him out. As I understand I am treated in the same way as any other buyer - no preferential treatment. If this is the case then why then, like any other sale, would we not split the wasted costs? Seems very unfair.
Expert:  Clare replied 9 months ago.

Because if the sale went ahead they would not have been wasted.

The only reason they are is because you will be buying him out

Customer: replied 9 months ago.
I really don't understand the logic here - a sale is a sale whether it is to me or to a third party. Why are they 'wasted' if the sale is to me? And really this will have been the fourth time I've made an offer to him over the last two and more years so we have only gone this far with estate agents due to his unreasonableness as the house had to be on the market.And just to be clear the current buyers are not straigh forward. Both my ex and I had been asking for a clear two weeks between exchange and completion on 5th Sept. It is a large place and has been a family home for 20 years so an awful lot of clearing. We had both agreed verbally that because of the eccentric behaviour of the buyers we wanted a clear legal commitment to the purchase before going ahead with clearing. Anyhow delay after delay and even an extension of deadline for exchange to 24th August and still no word from them. Last thing on 26th August we had a letter from their solicitor with no mention of an exchange date but agreeing to completion on 5th Sept but with some further rather unusual conditions in terms of land clearance. Now all hell is breaking loose as my ex is accusing me of defaulting on agreement as I have said (all along) that completion on the 5th Sept was conditional on their being an exchange on contracts by 24th August. Due to work I have also made it clear weeks ago of this condition is not met then exchange and completion will have to take place the second half of Sept. These buyers do not seem to be playing it straight either.
Customer: replied 9 months ago.
maybe distill into a few last questions:
- my only option if he refuses my higher offer is to take him to court
- he cannot argue that because we have buyers (albeit with no legal commitment yet) then he would rather go with their offer than mine
- regarding timing and my rights would it be better to make the offer now to him and through solictors acting on our behalf on the sale or wait to see what the buyers do. Would I benefit in any way should they drop out or ask for a price reduction due - for example - to our missing the 5th Sept (even if they missed our exchange of contract deadline)
Expert:  Clare replied 9 months ago.

OK.

I will try and make it clearer - it is an odd area so I do understand the confusion (indeed the behaviour of your buyers makes it more confusing again.

1. At present the Estate agents have found purchasers who wish to buy the property

2. You have (entirely reasonably) said that you require two weeks between exchange and completion

3. The buyers missed an exchange deadline but are now offering to exchange with completion on 5/9.

4. You have not unreasonably refused this completion date

If the buyers agree to exchange on say Wednesday with completion after 14th September then this would be reasonable and the Estate Agents will have preformed their contract and will need paying whether or not the sale goes ahead if YOU and your husband now pull out of the sale UNLESS it is because a third party offering more.

Moving on

You wish to own the property and to buy your ex out.

You are willing to offer slightly over what is currently on offer.

1. If you do that whilst the other buyers are still willing to go ahead the Estate Agents fees will still have to be paid so they are wasted - and your ex could reasonable say he will only agree to your higher offer if you pay them

2. If he will not agree (and the past history suggests he wont) then you have to apply to the court to vary the existing order. The court would view your paying the wasted costs as being reasonable if you wish to go ahead

2. IF the buyers do pull out you are in a very strong position and of course no wasted costs will be payable

Customer: replied 9 months ago.
Thank you really appreciate you spelling this out clearly. So it seems to me that I would be better to just sit it out a little and see whether these buyers now wish to come back with a clear set of exchange and completion dates or continue to delay. My ex and I had agreed earlier if they continued to delay and make additional demands then the house should be put back on the open market. Then would be a better time for me to make the offer. There is little to be gained by making an offer now until we are clear about the prospective buyers intentions. If they come back with exchange and completion dates then is the time to make my offer.
Expert:  Clare replied 9 months ago.

You are very welcome - and yes I agree you need to see what the buyers will do at this stage

Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33948
Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
Clare and other Family Law Specialists are ready to help you
Customer: replied 9 months ago.
Thank you very much for useful advice and information
Expert:  Clare replied 9 months ago.

You are welcome I hope all goes well

Customer: replied 8 months ago.
I'm hoping you are able to clarify a few issues on recent developments. I have now made him an offer that matches the buyers and agree to cover wasted costs. I also have an AIP from a lender that shows I can raise a mortgage that both covers his buy out, all associated costs and outstanding mortgage. He has now gone silent on this. just this minute I've received a message from our solicitors to say that the buyers want me to propose a new completion date as they are ready to exchange. My question is:
- given I have put a matching offer on the table am I within my rights to refuse to name a completion date until he responds to my offer?
- if he refuses my offer or accepts only under a set of conditions that are very difficult or expensive to for me to meet (he has been talking about guarantees, desposits and indemnities) what are my options?
Expert:  Clare replied 8 months ago.

You can of course refuse to give at date.

If your ex refuses the Court application is your only option

Customer: replied 8 months ago.
just to clarify - I can refuse to name dates which means I will be liable for paying wasted costs. He has no basis at this point to take me to court for the sale falling through as my counter argument is that I have matched the offer he accepted? If he refuses that then I have to get a court application.
Expert:  Clare replied 8 months ago.

Correct

Customer: replied 8 months ago.
Thank you.
Are you able to advise further? I have now received the following from him and I think everything is fine other than wanted advice on the last point regarding the upfront £10,000 deposit. Does he have a right to charge this?Based on the advice of my solicitor, this is what I would need to make this work.
· You would pay me the sum of £109,503.81 in respect of my share of the equity in the property
· In addition, you would release me from the covenants of the existing mortgage and take on the outstanding amount as your sole responsibility
· My solicitor would need to see, in advance of any agreement, evidence that you have the funds available to accomplish these two conditions
· You would agree to cover any wasted costs (all solicitors and estate agent’s fees, any claims arising from the change from sale to buyout)
· You would agree to cover costs associated with the transfer
· You would endorse these conditions in an open solicitor’s letter that also lays out the figures, timings for payments together with the transfer of equity. This letter should also acknowledge that this is an agreed variation to the existing court order.
· I would need a non-refundable deposit of £10,000 to cover me against the eventuality of you pulling out at any stage or attempting to renegotiate on price or conditions. I would of course return this if the transfer fell through due to any action of mine.
Customer: replied 8 months ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Clare replied 8 months ago.

It is no unreasonable per se but since it woudl involve trusting him I suggest that you agree that his solicitors can hold that sum until the matter is completed

Customer: replied 8 months ago.
Ok thanks. One more questions please:
- Is it reasonable of me to provide an open letter that agrees to all these terms and is supported by an offer in principle from the lender but with the condition that the £10k deposit will be transferred once the lender's survey has been completed because only then will I be 100% sure of securing the loan.
Customer: replied 8 months ago.
Also is this open letter to be done by the same divorce lawyers or can it be done by conveyancing lawyers?
Expert:  Clare replied 8 months ago.

Yes that is reasonable and it shoudl be done by your conveyancer

Customer: replied 8 months ago.
Thank you :)
Customer: replied 8 months ago.
I can't tell you how useful this has been and has given me real peace of mind knowing what my rights are. A very big thank you!
Expert:  Clare replied 8 months ago.

You are most welcome I hope all goes well

Customer: replied 8 months ago.
Just had one awful thought... You've seen the court order - would I be liable for stamp duty on the purchase?
Expert:  Clare replied 8 months ago.

NO you wouldn't

Customer: replied 8 months ago.
Great!! Thank you :)
Customer: replied 8 months ago.
Dear Clare
After agonising over the issues discussed and all the wasted costs involved I finally decided to agree to go ahead with the sale stating that we should complete on 3rd October on the condition that contracts were exchanged by 18th September. This delay is because of work-related travel that takes me out of the country from 6th Sept until 18th September. All parties have been made well aware of the delay that would be faced if we hadn't met the previous deadlines of exchanging by 24th August for completion on 5th Sept. I have all the email exchanges to support the above dates and conditions. These buyers have not been straight forward and I am surprised to hear that there is another buyer involved as the estate agent had presented them as cash buyers and I remember them saying that the horses were being kept on her parents farm so it is all a little strange.
I now have received a series of threatening emails from the ex and our solicitors which I attach below.
I would appreciate your advice on what my rights are.
Email from our solicitor:
Dear ***********,
I am forwarding an email received from your buyers' solicitor; I leave it to you to assess how serious is the threat by the party buying from your buyers to pull out and the chain collapsing. I would invite you *********** to consider if you can agree to completion on the 12 September, just before your buyers' buyer's mortgage offer expires. I look forward to hearing from you.
Kind Regards,
***********
***********
________________________________________
From: ***********
Sent: 01 September 2016 17:17
To: ***********
Subject: ***********
We write further to our telephone conversation earlier today. We have advised our clients and the rest of the chain that your clients will be unable to complete on Monday 5/9/16 as previously hoped.
We have been advised by our clients Buyers Solicitor that their buyers mortgage offer expires 13/9/16 and so we should be obliged to hear from you with a suggested date for completion prior to this date.
Our clients are unable to break the chain as they have animals which need to be housed. Additionally our clients buyer has threatened to pull out if completion does not take place on Monday as they have holidays booked (we are hoping our clients Estate Agent will talk to sense to this party).
We await hearing from you further to the above.
Kind regards
***********
Email from ex:
It seems that the buyers cannot go beyond 12 September for a completion date. They are, I gather, not happy at your current proposals. I think that you would be wise to take legal advice on the consequences of us losing this sale under these circumstances. If you insist on the dates you are currently proposing it has been made clear to me that we will lose it. There will be no benefit for any of us in this. The ancillary relief order specifies division of residual equity at sale so you will not be able to force an equity buyout on any terms, let alone ones that are more advantageous to you. I hope that reason will prevail.
You should be aware that I am requesting, by cc, both *********** and *********** *********** to prepare relevant documentation for my solicitor to initiate legal action in the event of this sale failing.
Customer: replied 8 months ago.
I just realised these conversations are public - is it possible to remove all names and addresses?
Expert:  Clare replied 8 months ago.

The last part is dealt with!

Is there any basis on which you could move out before your work trip and leave your ex to clear the house?

Customer: replied 8 months ago.
it would be very stressful.Am I not within my rights to say that I have been consistent all along in terms of dates. They have given no explanation for why they missed the first deadline. What are the legal implications if I say it isn't possible to clear the house until the end of September and the sale fell through. Would I be liable to costs? Would he have a right to bring court action on me?
Expert:  Clare replied 8 months ago.

Just considering your options

You are indeed entitled to say that your position was clear and that they will now have to cope with your deadline

You will not be liable for costs of the matter falls through at this point.

Your ex can apply to the court for an order giving him control of the sale - but you have not been unreasonable and it is unlikely that he will succeed

Customer: replied 8 months ago.
then I should just hold my position.My ex did say that 'the ancillary relief order specifies division of residual equity at sale so you will not be able to force an equity buyout on any terms'. Is that the case as of so seems I was badly advised by previous solicitor.If it isn't the case then I presume there is nothing stopping me from making my offer again and if he refuses seek a court order?That all said I suspect the buyers are trying to call our bluff.
Expert:  Clare replied 8 months ago.

If the sale falls through then there is a chance of your buying him out if the figures are right - the court will see no reason not to do this if the circumstances are right

Customer: replied 8 months ago.
Ok so many thanks once again for all your invaluable advice. Good night

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