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James Mather
James Mather,
Category: Law
Satisfied Customers: 22629
Experience:  Senior Partner at Berkson Wallace
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my husband and I have recently separated. I am currently living

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my husband and I have recently separated. I am currently living in our home (mortgage in joint names) with our 2 children. It is not financially viable for me to continue to do this and I am going to be moving into rented property with the children. We do not want to sell the property at this point in time, my husband is prepared to move back into the house and is looking at taking at a mortgage in his own name, extend the term to enable him to have lower monthly payments than we do currently on our existing joint mortgage. Our relationship is amicable and whilst I am happy for him to be living in the house ( I would rather him be living there and us to still to have our investment in the property and stability for the children to visit their dad and have access to their home than sell it at the moment) but I have been advised that i need to protect my share of the property should things not been so amicable in the future. We have devised a separation agreement that I have taken legal advice on stating what will happen with the property in the future and how it will be split etc and other financial matters however the solicitor said this could still be contested in the future by my husband. She talked about getting a restriction put on the property (land registry) to register my interest in the property. This would obviously prevent him from selling the house in the future without my consent, however I have contacted land registry and they will not give advice and only refer me to their practice guides for me to make a decision on what type of restriction I need. This is easier said than done, because the information is so complex and the examples given dont quite match my situation - It talks of me occupying the matrimonial home and that will not be the case - would you know which type of restriction I need, bearing in mind that the mortgage and presumably deeds will eventually be in his sole name - would I need to do this prior to him changing the mortgage in his own name or any other suggestion of how I can protect my share of the property for the future. I trust him implicitly and want to just trust that what we have agreed will stand, but others advice tell me to be careful and protect myself .

What restriction have you been advised to put on? The property is in joint names so he cant sell without yr consent or court order. The restriction would protect yr interest if you weren't both on deeds.

Are you talking about another property in his sole name or this one in his sole name? Do you have lenders consent to transfer property to his sole name?

Who told you this?

Thanks

Customer: replied 4 years ago.

I did say that he is going to be putting the mortgage in his sole name - he is applying for a new mortgage with a different lender, I guess I will at some stage have to consent to this to change the mortgage from the existing one to one in his sole name - a local solicitor advised about how I could go about protecting the property without my name being on the mortgage and a restriction with land registry was an option. Are you saying that under no circumstances should I come off the mortgage - I know this is risky but is there any way of me taking my name off the mortgage but still protecting my share in the future???





So he is taking a new mortgage on in his sole name on the marital home.

In which case, you need to register a Matrimonial Home Right (which is the
restriction you refer to) which warms any prospective buyer that there is an
ex-wife lurking in the background who owns a chunk of the equity. If you have
the property in joint names, and the lender will insist on the mortgage in the
joint names and you are therefore liable for it if he does not pay. The
matrimonial home restriction gives you protection without liability.



You need to get an undertaking from the solicitor who is dealing with the
transfer from joint names to just his name, to register the property with the
rich restriction in your favour.



I would strongly suggest that you see an independent solicitor to make sure
that you are not left hanging out to dry having completed the transfer from two
names to one name and with no restriction in place and then being faced with
the reluctant/uncooperative husband.



Can I help further?



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Customer: replied 4 years ago.

yes you are right he is going to be taking over the mortgage in his own name on the matromonial home and occupying it. He has not started this process yet so I guess at the moment the deeds for the property are still in joint names - would i need to register the restriction with land registry before the mortgage transfers over to his own name. Will land registry put a restriction on a property in my favour when the deeds will at some point be transferred in his sole name . Would you know which land registry practice guide this relates to? Can deeds stay in joint names even if the mortgage is soley in his name or not ?

No 19.

http://www.landregistry.gov.uk/professional/guides/practice-guide-19

The easiest way is to get the solicitor to undertake to register the restriction as I said above

You cant register a restriction in favour of you if you are joint owner!

Usually a lender will insist that if it is joint mortgage it is registered in joint names and vice versa

 

Customer: replied 4 years ago.

so just to clarify then, when he applies for a new mortgage in his own name he will need to instruct the solicitors dealing with the mortgage transfer etc to register the restriction with land registry. I cannot go ahead and do anything at the moment whilst it is still in joint names... correct !?! Once we get divorced, I have read on the land registry website that the restriction would end as obviously our marriage would cease. If we still have the property at this point, can the restriction be extended until the point of selling the property (obviously with both of our consent). If we both agree to sell the property at any point can the restriction be easily removed to enable us to sell. Are there any other methods you can suggest of protecting my share of the property or is this the only option.

He can instruct them to do it but if they don't you will have to. I would let them have the trouble. Tell them that the transfer is conditional on that and you want their undertaking to register the restriction. They cant go back on an undertaking

 

You can instruct them now but not register it.

 

Don't get divorce absolute until finances are sorted

 

you can any one of a load of restrictions. The correct way is as I have described.

 

Customer: replied 4 years ago.

not really sure what you mean - say for instance he goes ahead and applies for mortgage in his own name, will there be a point where consent is needed from me to transfer mortgage from joint into sole name (even if this is with a new lender, will they still need my consent to come off mortgage) at what point in the proceedings would i need to get them to undertake a restriction in my favour - is this something they ask in transfer of mortgage into a sole name from joint names? How will i know if they have done the restriction - once the mortgage is in his own name can I still put a restriction in my favour or does it have to be done whilst the transfer is taking place





You said he was remortgaging with another lender.

You now mention transferring the mortgage into his name. That is different.



If he is transferring the mortgage into one name, he needs the lender's
consent.



If the property (not the mortgage) is going from two names to one name, you
sign the transfer deed. That gives effect to the transfer. There is no consent
is needed from you as such.



When you agree to sign the transfer you agree to sign it provided you have
an undertaking from his solicitor to register your restriction. It is as simple
as that.



No undertaking from his solicitor, you do not sign the transfer.



You can get up-to-date office copies from the land registry for 3 pounds or
simply get their undertaking to advise you when it has been registered.



The restriction can be placed after each is done in his own name but there
is no reason for his solicitor is not to deal with it for you



Customer: replied 4 years ago.

mortgage in joint names at present - mortgage will be in his name with a different lender. Will the same process not apply ? Does a joint mortgage, going to a sole mortgage with a different lender still require a transfer of names document. Can you have a motgage in a sole name but still the property be jointly owned ?? I,m confused !?!

Yes. Still needs the transfer to change name on the Land Register.

Joint owned property with mortgage in sole name is XXXXX XXXXX IF you can find a lender to do it.





Can I help further?

Please bear with me today and over any weekends because I will be online
and off-line.

Please don't forget to positively rate my answer service (even if it was not
what you wanted to hear) and I will follow up any further points you raise for
free.

If you don't rate it positively, then the site keep your deposit and I get 0
for my time. It is imperative that you give my answer a positive rating. It
doesn't give me "a pat on the head", "good boy" (like ebay), it is my
livelihood!

If in ratings you feel that you expected more or it only helped a little,
please ask me for further info before rating me negatively otherwise I don't
get paid at all for my time and answer.

The thread remains open for us to continue this exchange





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