How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33519
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
13262538
Type Your Law Question Here...
Clare is online now

There is a court order for the sale of our family home when

Resolved Question:

There is a court order for the sale of our family home when our youngest is 18 in Sept. The equity is to be split 60/40.

My ex wanted to pay me the 40% of the equity and take on the mortgage. We agreed a valuation but she has now changed her mind. I have suggested that I will take on the mortgage and pay her the 60% of the equity. She has refused and wishes to sell the house on the open market (but not to me!). I have given assurances that I will not be moving into the house and only wish to keep it going for our children but she remains adamant.

The original court order stipulates a sale with my ex making the arrangement for the sale. Can I insist on keeping the house and paying her the equity through a court order? If so, what is the likely cost estimate and how long would the process take?
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
has the property actually been marketed?
Clare
Customer: replied 2 years ago.

Hi Clare,


 


Thanks for your response.


 


The property has been valued (£25000 with 90000 equity) but has not been put on the market.


 


Considering how difficult the divorce has been I wish to avoid a lingering long sale period and settle the equity.


--Ebbi

Expert:  Clare replied 2 years ago.
Hi
Once the house is on the market she cannot refuse to sell the house to you at the asking price.
If she tries then you can apply to the court for an Order allowing it - however there is no action that you can take until September I am afraid
I hope that this is of assistance - please ask if you need further details
Clare
Customer: replied 2 years ago.

My ex is adamant and it is very likely to go to court. Any estimate of the cost / time for such an Order? and does this situation warrant seeking legal costs?


Thanks, Ebbi

Expert:  Clare replied 2 years ago.
Hi
In September when the property is marketed and you have made the offer and she has refused it then you can apply to the court using a Form D11 to enforce the sale of the property (to you) at the asking price.
The fee is £155
You can indeed claim costs
Clare
Customer: replied 2 years ago.

Would you be interested in taking on this case? And can the 'Sale of property' order be delayed by objections such as not allowing me to borrow against the equity to pay her share of the equity or insisting on transfer of the current portable interest only mortgage to her name?


--Ebbi

Expert:  Clare replied 2 years ago.
Hi
Is she intending to use the Portable Mortgage?
If so would you be able to raise an alternative mortgage?
Clare
Customer: replied 2 years ago.

She did intend to use the Portable Mortgage when she considered taking on the property; it does have favourable (interest only) terms, so I assume she may want to transfer it to buy another property.


 


I will only be able to raise the additional mortgage to cover her 60% equity, if I could keep the current interest only mortgage.


 


--Ebbi

Expert:  Clare replied 2 years ago.
Hi
That changes matters considerably I am afraid.
If she wishes to Port the product then certainly she will be allowed to do so - so your buying her out will not be an option unless you can raise your own - separate mortgage
Clare
Customer: replied 2 years ago.

To be clear Clare; the portable mortgage was taken based entirely on my income and I have covered the mortgage payments. Very briefly, my ex was a mature student before the separation and also studied for a further course after the divorce. The ancillary/financial relief covered all costs for this to be possible. She has not had any contribution towards getting the mortgage.


 


In the circumstance, should I not have equal (if not more) of a right to keep (or port the mortgage)?


--Ebbi


 


--Ebbi


 


 

Expert:  Clare replied 2 years ago.
Hi
I am sorry - the way that the Court Order is drafted means that it is your ex who has the right to take it on - not you
Clare
Customer: replied 2 years ago.

Here is the text of the Order:


 


"The property shall be sold upon the youngest of the said children reaching the age of 18 years and the following consequential provisions shall apply:


 


a) upon sale the proceeds of sale shall be applied as follows:


i) redemption of the mortgage with the Woolwich building society


ii) Payment of solicitor's costs and disbursements on sale and payment of the estate agent's charges on sale.


iii) The balance remaining (the Net Equity) shall be divided between the parties as follows: The Petitioner shall receive 60% of the net equity and the Respondent shall receive 40% of the net equity.


 


b) The Petitioner shall have the conduct of the sale.


 


c) The property shall be placed on the open market at a price to be agreed between the parties or in the absence of agreement to be determined by the Court.


 


Does this order mean, I have signed away my mortgage to my ex??!!


 


The advice at the Bank was either of us could voluntarily take our name off the mortgage and subject to affordability continue or transfer it to another property within a month of a sale.


 


--Ebbi

Expert:  Clare replied 2 years ago.
Hi
Since your ex has the conduct of the sale then yes I am afraid if you both want to port the mortgage it is more likely that the court will support your ex - I certainly would not suggest risking the costs of disputing it.
However if she does NOT want to port the mortgage then you can do so
Clare
Customer: replied 2 years ago.

The implication of Porting the Mortgage is key as we are both in our 50s; just to get a clearer idea of what a court decision may be, here is a brief context.


On divorce, I think there was a “from each according to their ability and to each according to their need” type of agreement with 50% contact arrangements. The maintenance and the child benefit / tax credit amounted to just under 2000 pounds, with an interest only mortgage payment of less than £100. This is more than we ever had as a family and it was to allow my ex to finish a degree course in the hope of a future career. She has done that and now has a reasonably paid job and savings. I have rented a flat near the family home/school and manage but no savings. I believe this would be clear from any financial statement submitted.


We are now at the end of our arrangement which unfortunately never considered future mortgage needs.


I was happy for my ex/guarantor to take on the house and the kids would have had the family home to come to and I would be able to buy a flat with the 40% equity as deposit. My ex has decided against this.


I have offered a variation on the current order until the kids leave university with adjustment to the equity ratio to 50/50 or 40/60. This is not acceptable to my ex.


My offer to accept the asking price (save any resolution to porting the current mortgage) has also not been accepted with the response that it will be sold but not to you!


In terms of mortgage needs; I have no savings for a deposit but a reasonable salary and my ex has sufficient savings and a lower salary.


In the circumstance, what do you expect the court judgement to be? Is it all or nothing? Could they order the Portable Mortgage to be split and shard? And if it came to a dispute, what are the likely cost estimates?


Thanks, --Ebbi

Expert:  Clare replied 2 years ago.
Hi
I am sorry but the Court will not re-visit the order and reconsider it - it is about putting the terms of the Order into practise
So whilst you would be allowed to buy your ex out if she is intending to move the mortgage on she will not be forced to let you have the mortgage
The fact that she has conduct of the sale will be seen as implying that she can port the mortgage should she wish to do so
They certainly cannot Order that the portable mortgage is shared
Clare
Customer: replied 2 years ago.

If by Sept, the date of the court order, the property is not put on the market; do I have an option of a court order to take charge of the conduct of the sale? And in this situation, what happens with porting the mortgage?

Similarly, if the the property is put on the market but my ex refuses to accept my offer of the asking price; do I have an option to take charge of the sale and porting the mortgage?

Thanks, --Ebbi

 

Expert:  Clare replied 2 years ago.
Hi
If the house is nor marketed within a reasonable time (say three months) then yes you can apply to the court to have the conduct of the sale - and at the point yes you MIGHT have a chance of porting the mortgage
Equally if she will not take your offer you can apply to the court - but only if you can show that you could progress without using the existing mortgage
Clare
Customer: replied 2 years ago.

I greatly appreciate your reply Clare; and particularly grateful for a reply on a Sunday.

Just trying to decide what to the next? and it seems I either just wait till Sept or Dec) or try to get a response from my ex. now. I had drafted this note to send to her:

" ... As you are aware we are legally obliged to carry out the Court Order and the deadlines it sets can not be ignored.

To be clear, you have had opportunity to buy the property and have decided that it is not feasible.

I understand your wishes are to put the property on the market for sale, but not to me! In such circumstance, I will have the option to seek a Court Order and the costs incurred to force a sale. I have been clear that I have no wish to move into the property and if I am forced to seek a Court Order it would be to keep something for the children; the last opportunity I am able to do this.

As an alternative, I have offered to support loans to keep the property until Faranak goes to university and to make this possible the equity needs to change to a 50/50 split but you have rejected the idea. I urge you to reconsider the arrangement for Faranak.

If you remain adamant and wish to put the property on the market, then in accordance with point 2C of the Court Order, we need to agree a price or in the absence of a reply and an agreement it needs to be determined by the Court. We are legally obliged to do this.

I look forward to your reply but should a reply not be forthcoming, I can only assume that you wish matters to be resolved at Court through lawyers."

I appreciate the question is not just 'law' but overall would you advise that I should just wait till Sept-Dec or send a note to get any response.

Thanks, --Ebbi

Expert:  Clare replied 2 years ago.
Hi
there is nothing in wrong in writing the note and seeing what happens - then you can take action later on depending on her reaction
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33519
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
Clare and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi Clare,

I Have not had nor do I think likely to have a response from my ex. In the Order, the deadline for the sale of the property is in Sept. I would like to see it all finalised as soon as possible. It's a rhetorical question but it seems I have to wait until Sept before I can think of any legal action to force a resolution. Or can I expect the start of the sale process now for it to be finalised by Sept?

Also, I had a note to say I should leave a rating/feedback. Does this still allow for contacting you?

Thanks,

--Ebbi

 

 

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Jo C.

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
< Previous | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Jo C.'s Avatar

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
  • http://ww2.justanswer.com/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    11553
    Qualified Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.com/uploads/BU/Buachaill/2012-5-25_211156_barrister5.64x64.jpg Buachaill's Avatar

    Buachaill

    Barrister

    Satisfied Customers:

    1754
    Barrister 17 years experience
  • http://ww2.justanswer.com/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Advocate

    Satisfied Customers:

    894
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.com/uploads/UK/UKLawyer/2012-4-12_9849_F2.64x64.jpg UK_Lawyer's Avatar

    UK_Lawyer

    Solicitor

    Satisfied Customers:

    750
    I am a qualified solicitor and an expert in UK law.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    402
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    8199
    LL.B (Hons), Higher Prof. Dip. Law & Practice