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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10635
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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I own my home 50/50 with my brother. Is it possible

Resolved Question:

I own my home 50/50 with my brother. Is it possible for me to protect it by transferring it into a trust. I may need to protect it against future litigation which may be commenced against me.
Submitted: 2 years ago.
Category: Law
Expert:  Aston Lawyer replied 2 years ago.

Hello and thanks for using Just Answer.

My name is ***** ***** am happy to assist you with your enquiry.

Legally, if a party gifts away property/assets or puts it into a Trust for the benefit of a third party, and is then made bankrupt within 5 years from the date of the transaction, the Trustee in Bankruptcy can try and claim back the property if he can prove the transaction was made by you to avoid creditors.

In your case, I note there may be litigation pending. If this third party were successful in any Court action against you, and you were then unable to pay what was owed to them, they would have 2 alternatives-

1. make you Bankrupt.

2. make a further application to Court in order to register what is called a Charging Order on your share of your property. This Charging Order then basically sits on your title and as and when the property is eventually sold, you would need to pay to the third party the money outstanding to enable the Charging Order to be removed from the title.

I can't of course say whether either of the above is likely to happen and can only give general advice. However, making someone bankrupt is not normally the best way to get your money back, and the Charging Order scenario would only be possible if you retianed your name on the jointly owned property.

I hope this assists and sets out the legal position.

Kind Regards

Al

Customer: replied 2 years ago.

Hi Al

If a charging order is made can anyone compel me to sell the property or could I keep it for my lifetime and never in effect sell it?

During the course of time when the charging order is in effect does the amount outstanding attract interest?

If I offer a charging order, can the creditor refuse it and compel me either to be made bankrupt or sell the property?

Expert:  Aston Lawyer replied 2 years ago.

Hi Philip,

As the property would be in the joint names of yourself and brother, they wouln't be able to get an Order for Sale.

Any Court judgments attract interest at a rate of 8%, so yes, interest would accrue.

A Charging Order is something the other party would have to decide to pursue- once a Court judgment is given (ie the Court decides you owe £x), it is up to the parties to agree on a repayment plan. If the other party is not happy with your proposals for repayment, they can consider making the further application to Court for a Charging Order.

I hope this assists and clarifies the position for you.

If I have assisted, I would be grateful if you could rate my answer.

Kind Regards

Al

Customer: replied 2 years ago.

Al

You wrote,

"As the property would be in the joint names of yourself and brother, they wouln't be able to get an Order for Sale."

Can you please confirm this advice applies if the creditor does not go for a charging order but decides to make me bankrupt.

Expert:  Aston Lawyer replied 2 years ago.

Hi Philip,

One way for the official receiver to deal with a bankrupt’s interest in a jointly owned property is to sell that interest. The property interest is only ever sold if there is a clear benefit to the creditors in doing so.

In your instance, it is highly unlikely that anyone would want to buy your one half share in the property, especially if your brother is living there, and therefore it would be normal for no sale to be enforced in such circumstances.

Hope this helps.

If so, I would be grateful if you could rate my answer.

Kind Regards

Al

Expert:  Aston Lawyer replied 2 years ago.

Hi Philip,

Can I assist you any further?

Kind Regards

Al

Customer: replied 2 years ago.

Al

I think this will be my last question. In the event that someone does buy a half share in the house, would he be entitled to live in it also?

Expert:  Aston Lawyer replied 2 years ago.

Hi Philip,

Yes- any buyer of the half share would be entitled to occupy as he would become a legal owner of half the share.

I must say it would be very unusual for just the half share to be sold!

Hope this assists.

Please remember to rate my answer, if I have answered your questions.

Kind Regards

Al

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