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Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 22403
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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i separated from my ex partner ( not married), she was named

Customer Question

i separated from my ex partner ( not married), she was named on the mortgage and land register. the separation was difficult and i have spent 22 months sorting contact in court with children out. My ex had an occupation order but has now left the former home, my ex declared herself bankrupt in December 2011. reposession proceeding are due to commence however the mortgage company are happy to discuss me keeping the property and renting it out.

My question is more to do with, if i do rent, i know i cant remove her from the mortgage but can i have her name removed from the land register as she is bankrupt?
Submitted: 3 years ago.
Category: Law
Expert:  Stuart J replied 3 years ago.

The only way to remove her is with a court order or consent of the Trustee in bankruptcy because her interest is now vested in the Trustee.

At this stage I would contact the trustee.

You will need to prove what the house is worth and what equity is in it. He may want her share bought out by you if it has any value.

Can I help further?

Stuart J, Solicitor
Category: Law
Satisfied Customers: 22403
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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Customer: replied 3 years ago.

Thank you this advise is exactly what i wanted to back up as this is what i had gathered as being correct myself. I have spoken to the land registry, the official receiver however both advised i sought legal advice. By using this service i needed to see a professional write the same as what i had gathered and to be my understanding. I wanted to double check.


 


The said property is in negative equity, official receiver requests i send property mortgage balance evidence, a valuation of the property and if satisfied a Fee of £1000 plus £211 solicitors fees is payable andtransfer of land is done to me.


 


Can i ask, my ex will remain on the mortgage till i am in a position with lender to take on mortgage in my own name, can my ex try to come back at a later point to gain for herself? I do not envisage my ex will willingly agree for her name to be removed ever. If i take out a new mortgage product that replaces the current joint does my ex need to approve or sign anything? Can she stop it ?


 


thanks

Expert:  Stuart J replied 3 years ago.

Thanks.

Once she is off the title she has no legal claim although that doesnt stop her saying she signed the transfer to you under duress.

However she lost her financial interest in the property when she went bankrupt.

The trustee in bankruptcy, therefore, can transfer her share of the property to you .

So, even if she signs a transfer deed to you under duress (which she does not need to do because the trustee in bankruptcy, a court officer, can can sign). She has no interest in the property because it belongs to her creditors/trustee .

You will not be able to remortgage the property, however until until such time as you have a transfer deed removing her name from the property.

The conveyancing solicitor who deals with your remortgage will deal with all this as a matter of course . But at least now, you know how it can be done and that there are few pitfalls for you, if any, , if the job is done properly.

Customer: replied 3 years ago.

Hi, my ex had an occupation order in place whilst residing in the property, now she has moved into her own property elsewhere does this mean the order is finalised/ended. Does she now have no rights to return or re-enter the property given she has no claim over the land registry given her bankruptcy?


 


Secondly am i within my rights to change the locks? I want to rent the


property out to save repossession and further damage to my credit rating.


 


 

Expert:  Stuart J replied 3 years ago.

She has legal but not financial /equitable interest because her name is XXXXX XXXXX deeds. Until her name is XXXXX XXXXX she can come and go as she likes.

You are probably going to have to make application to have order revoked on basis that she no longer lives there. She can decide to come and go just to be awkward if you dont and in any event the order is for her to live there and you not. Better be safe.

Customer: replied 3 years ago.
Hi further to recent questions I have changed the locks on the property on Saturday, my ex had removed all her belongings since my initial check on the property however she had started to remove other things such as the underlay and fitted cooker I feel out of spite and cost to me, so I felt I needed to take evasive action and had locks changed. I have been threatened with further vandalism to the property of the boiler and shower being ripped out, I am worried about the safety of the property and gas leaks etc if the boiler removed by a non professional!

My ex has been made aware the property is on line for rent

My ex I believe has booked a solicitors appt and I'm determined to remain within the law but I really felt I needed to protect the property

Can I apply for an order as she has no rights to house due to bankruptcy, no financial interest, she has been re housed.

I have insured the property as a landlord for tenants and going through motions of renting.

What rights does my ex have if all she has left is her name on mortgage until me buying beneficiary interest off official receiver has been completed, afterwich I will be seeking her name being removed from mortgage

Secondly if I let the house out can she enter/break in to change locks herself?

The mortgage co have been brilliant and supportive, I don't want this all falling apart and have the house repossessed because of her difficult behaviour
Expert:  Stuart J replied 3 years ago.


You
can apply to court for an occupation order to exclude her.

Before
doing that, I would bring her actions to the attention of the trustee in
bankruptcy.



To
get her name and the trustees interest removed, you need to negotiate with the
trustee to buy out her interest.



She
can always get back in (although not change the locks, as indeed neither can
you), provided she remains on the title. Bring to her attention that the locks
belong to you and if she breaks them, it is criminal damage and you will refer
the matter to the police. Some police forces will take it on board. Others will
say it's a domestic and leave you to it.



The
only way of stopping the house being repossessed is to make sure the mortgage
is paid up to date

Customer: replied 3 years ago.
Hi again this is helpful, I have enquired regarding the occupation order this will cost £70' I have completed the form but I would find it helpful to understand what I can ask the court to enforce within their powers
I have listed the courts consider
Terminating her home rights as she has her own home, income etc elsewhere
Prohibit her from coming within 100 metres of the property
Prohibit her entering the property
Prohibit her from damaging, making threats to damage the property directly or via a 3rd party
Prohibit me or any tenant from harassment, intimidation and respect a tenants right to a peaceful life if a tenant moves in.

The mortgage co informed me today she has refused consent to rent the house even though she has nothing to gain financial but purely out of spite,

Is there any request I can make to a court about her being forced to approve rental as it will financially ruin me to pay for an empty house and I will certainly have to go bankrupt and house reposessed.

Mortgage has been paid and a payment arrangement is in place for arrears, I can cope with that but really need to rent

Help thank you
Expert:  Stuart J replied 3 years ago.

Make sure that you support the application with a witness statemnt. Ask for the court to order consent to rent or you could ask the Trustee in bankruptcy.

The TiB is entitled to 50% of any rent suplus after paying 50% of bills and 50% of mortgage

Customer: replied 3 years ago.
Ok so I have forms all done for occupation order, and request for court to consent to let of property
I have requested ex parte as I firmly believe if she gets wind of going to court she will do something

Full statement of facts done too

If I'm going to court with papers (all copies signed as required) and fees will I have to wait around whilst it's heard (on the day) or can I pay and leave? I know it's a daft question but it's time I can't afford off work!

Thanks
Expert:  Stuart J replied 3 years ago.

You make the submission and the court will give youa hearing date.

If it is urgent you need to attach a letter saying whay and ask for it to be heard at the earliest opportunity.

Bring the urgency to attention of court staff.

Make the urgent reasons short and concise.

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