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ukfamilysolicitor
ukfamilysolicitor, Solicitor
Category: Law
Satisfied Customers: 1100
Experience:  Qualified Solicitor Currently specialising in Family. Also experienced in Corporate, Employment, Civil Litigation, Debt Recovery
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My husband bought a house in 1996 with his ex wife .

Resolved Question:

Hi
My husband bought a house in 1996 with his ex wife . In 2001 he got a divorce and settlement was granted. My husband put his brothers name on a mortgage to help him open a florist. His brother only contributed a small amount towards mortgage, never put lump some of money towards it and now demands 50 percent of the equity. On top of that he refuses to sell the house. We are a family with two small children. We want to move to an area so our children can go to a better school however his is refusing to sell. What rights do we have? My husband when putting his brothers name on a mortgage happened 7 months after his divorce where he lost 50 percent of equity. He never got an advice to draw up a deed of trust. His brother now has a successful business and altough my husband found the business and his named as company secretary he doesn't benefit anything from it. His brother gone and registered someone else as a partner of equal share in a business which we just recently found out. Can you please help?
Submitted: 1 year ago.
Category: Law
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Welcome to Just Answer.
I am a Solicitor and will assist you.
I am sorry to hear about the difficulties that you are experiencing.
From your description - it sounds to me like the property was registered as joint tenants, with no deed of trust - despite unequal contributions being made and unequal mortgage payments since. I note that you have already obtained a barristers opinion and they have estimated an outcome for a Trust of Land Act claim for a Declaration as to your husbands interest in the property as being 55-60 %
I note that you are concerned about the likely cost of such proceedings. I also note that you want to sell the property - however the brother is not willing too.
If the brother is a joint owner of the property - then his permission is going to be required. If the brother wont agree - then you are going to have to ask the court to make an order for sale in respect of the property.
This is the same type of proceedings that you would have discussed with your barrister in relation to the Declaration as to your husbands interest (a court declaration as to how much your husband owns).
The proceedings are dealt with under the Trust of Land Act.
Perhaps you could consider if Alternative Dispute Resolution might assist if agreeing this matter without the need for an application being made to the court. You could consider referring the matter to mediation. There are lots of mediation services and there will be one local to you. One such national service is www.nfm.org.uk
If mediation doesn't work - then I am sorry to say that you are going to have to refer the matter to court and ask for an order for sale. If you do have to take this step then you may as well ask the court to deal with the issue of how much of the property is your husbands at the same time.
I would also advise you to consider getting your husband to sever the joint tenancy in respect of the property. The reason that I say this - is should your husband die (with our without a will) - if he and his brother are joint tenants on the property - then the right of survivorship will apply. This means that the whole of your husbands share will automatically pass to this brother - if he is the other joint owner - leaving you getting nothing unless your husband severs the joint tenancy. See this link for the type of notice that you should serve:
https://www.gov.uk/joint-property-ownership/change-from-joint-tenants-to-tenants-in-common
Kind Regards
Caroline
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Customer: replied 1 year ago.
Hi Caroline,The property is held as tenancy in common with an equal share. Would this change the situation?
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Thank you for your response.
You don't need to worry about the right of survivorship - as 50% is already ring fenced to pass with your husbands estate - so this will not pass to his brother automatically but you do still need to obtain the brothers permission to sell the property - so this will need to be an application to the court if matters cant be agreed at mediation.
Kind Regards
Caroline
Please kindly remember to rate positively
Customer: replied 1 year ago.
I see. Thank you. The reason why we have put the house on a market and found a buyer was as his brother agreed to such a sell which we have it as a proof written message communication however now he refuses. We tried to talk this matter with family members to come to agreement however everyone is against my husband as they don't want us to move out. I will suggest to your husband the mediation centre.
Customer: replied 1 year ago.
On another note can I apply my marital rights to the property?
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
I am sorry to hear this.
Mediation is definitely worth a go.
In respect of your matrimonial rights - this is unlikely to assist in the current situation. If you were residing in the property - then you could apply for a matrimonial homes right notice to protect your rights of occupation - but this wont assist with helping to sell the property.
Kind Regards
Caroline
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