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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10176
Experience:  Barrister 17 years experience
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my house has sold I think the solicitor dealing with my legal

Customer Question

my house has sold I think the solicitor dealing with my legal charge for 40% net proceeds of sale has calculated my share incorrectly at the time of the charge the mortgage owing was £32,662.71 house sold for £116,995 she has taken off solicitors fees, selling fee's then taken off the £32,662.71 (not what's owing on mortgage £7,000.00) then deducted my 40% giving me £35,089.05, should she of just taken off the £7,000.00 owing to building society then deducted my 40% ??
Submitted: 2 years ago.
Category: Law
Expert:  Buachaill replied 2 years ago.

Buachaill :

1. Can you better explain the situation as what you have recounted is slightly confusing. Who holds the mortgage? Is it a building society? How much is owing on the mortgage? Is it 7,000, or 32,662.71? Why do you say that just 7,000 should have been deducted before your share was calculated?

JACUSTOMER-1rp4wg3w- : The mortgage was in my name and former wife's, I left the home address after we separated in May 2000, after a few years of going back and forth to court and her not showing a legal charge was placed upon the house for 40% net proceeds of sale upon my youngest children becoming 18.
JACUSTOMER-1rp4wg3w- : ex wife continued to refuse to sell house ran up mortgage debts and therefore I went back to court to enforce the legal order, a section of my legal charge paperwork is what my solicitor is following in order to obtain my financial share from the house. The paragraph in the legal charge reads as follows:
JACUSTOMER-1rp4wg3w- : the term net proceeds of sale referred to at paragraph 1 above shall mean the gross proceeds of sale less any estate agents fees solicitors costs relating to the sale and the sum due for redemption of the mortgage in the favour of abbey national plc, on condition that the respondent shall not increase the sum presently owing in respect of the said mortgage of £32,662.71 as at 26 July 2005 by further advances there under and the applicant shall give credit to the respondent for such capital reduction that she shall have made, if any, in respect of the said mortgage between the date hereof and redemption of the applicants said charge.
JACUSTOMER-1rp4wg3w- : there is currently £7,000 outstanding on the mortgage therefore I thought you would work it out as follows: sale price £116,995 - solicitors fees estate agent fees, take off payments ex wife has paid from the date of the order, which is £22,000 then deduct my 40% ?? Solicitors is working out this figure using the amount owing to abbey national at the date of the order in 2005 and not what's owing now less ex wife's contributions over the years from 2005 to date
Buachaill :

2. I regret to say that what the solicitor did is the correct approach. Essentially, the 32,662.71 has to be deducted as this was what was owing at the time the court order was made. The court order requires you to give credit for any reduction in the mortgage sums up to the date of sale. So if there is only 7,000 owing on the mortgage today, you do not get any part of that reduction. You only get 40% of the sum realised less the 32,662.71 owing when the court order was made, I regret to say. So here your 40% share was correctly calculated. This is what is meant by the expression in the Order that " the applicant shall give credit to the respondent for such capital reduction that she shall have made, if any, in respect of the said mortgage between the date hereof and redemption of the applicants said charge". This means that you must allow credit to your wife for any reduction in the mortgage from 32,662.71 and you will not get any share in this reduction. So that is why the solicitor has not just deducted the 7k now owing today.

JACUSTOMER-1rp4wg3w- : Thank you for explaining this to me, have a nice day
Buachaill :

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