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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33498
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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when paying a second charge of 5% on a marital home (ex in

Resolved Question:

when paying a second charge of 5% on a marital home (ex in his own home since 2008 purchased mortgage free with funds from divorce) is it usual practice to use the net or gross proceeds of sale?
The first charge is a mortgage taken out to raise funds paid over to ex in 2008 (nearly £17K interest paid on this since raised) - there is also sale costs involved.
Also does ex have CGT liabilities due to having own PPR?
Many thanks
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 years ago.

Thank you question.

I will do my best to help you but I need some further information first.
What is the exact wording of the Court Order creating the charge?
Clare
Customer: replied 2 years ago.

The Order did not reflect Counsel's opinion which showed all payments less proceeds of sale, there were other mistakes which went back to be rectified by Court - my solicitors let my ex's solicitor draw it up when they should have done so as the Hearing was called at my request.

I have tried to have it varied but was out of time and was advised to take it up with my ex.

My ex did not make full disclosure to Court, if he had I would not have had to take out the mortgage to make up funds and have paid nearly £17K in interest since. My divorce came a few days after my 60 b'day and I have been penny pinching since, while trying to downsize to pay off mortgage and loans incurred in doing so.

Order:-

1. The wife do pay or cause to be paid a lump sum of £170,000, to be paid as follows:-

i £150K by 29th February 2008

ii The balance of £20K to be reflect as a charge of 4.85% of the gross proceeds of sale on the property

N.B. The £150K was raised by obtaining planning permission side garden and selling as building plot and a mortgage of £51,000

On payment of £150K he the Order was to leave, but I let him stay on further 6 months as the woman he broke up the marriage left the scene.

His financial disclosure to Court was £11K (before legal costs) yet he put £25k towards house purchase (no loans or mortgage) and immediately converted house into two flats.

There was no order to pay costs.

Expert:  Clare replied 1 year ago.

I am afraid that the simple fact is that the Order is clear - the 5% relates to the Gross value of the property - not the net.
I assume that the rationale was that this was the easiest way of reflecting the amount involved in the charge
I am sorry - it does seem that you have had a very difficult time with the court process.
Please ask if you need further details
Clare
Customer: replied 1 year ago.

Thank you so much, unfortunately I was badly let down by solicitor, who didn't seem to understand financial matters, and although I took Counsel opinion on her advice, she failed to be guided by it.

The property will not raise what the Court based the settlement on but it is too much to go in to.

Am I being too simplistic to say that surely the 1st charge must be paid before the second charge so - if the mortgage is paid up paid first, it follows that the % should be on the remainder?

If this isn't the case it means that my ex will get % of money all ready given to him (mortgage funds) which was not what Counsel advised - it was never envisaged that I would need to borrow so much

It also means that I will bear the costs - again.

Expert:  Clare replied 1 year ago.

No I am afraid that the Order is specific on the point - his charge is on the GROSS proceeds - and that means that the mortgage cannot be deducted
I am sorry
Clare.
Clare, Solicitor
Category: Law
Satisfied Customers: 33498
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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