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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33274
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Is a verbal agreement binding in law. My daughter and her ex

Customer Question

Is a verbal agreement binding in law. My daughter and her ex partner bought a property in 2006 he left 9 months later but verbally agreed that he would have no beneficial interest or claim any equity in the property if my daughter would continue to pay the mortgage herself and he agreed he would not pay maintenance for their two children. She has tried since 2009 to remove his name from the title and mortgage but her mortgage lender would not allow this stating that she could not afford the mortgage.....even though she has paid it herself for the last 8 years. She tried putting us, her parents on the mortgage as guarantors which was rejected, she asked her mortgage lenders for help in taking her ex partners name off the title, but received no help. A charge was put against the property in 2014 from a debt that her ex partner had incurred, so my daughter agreed to pay the debt if her ex partner had no objection to her selling the house to us her parents, as this seemed the only way to remove his name from the title, with an agreement that we would sell the property back to her once she had found a mortgage lender that would give her a mortgage in her own name,. The sale was going through, her ex partner had signed the TR1 at the solicitors in preparation of the sale, when all of a sudden my daughters received papers from a solicitors stating that they were applying to court to place a charge against the property for another debt that her ex partner had incurred.
We decided to go to court to fight this, as we had a verbal agreement that her expaetner had given up any equity and had no beneficial interest in the property. Her ex partner wrote to the court to confirm this. We have been to court 2 times now and both judges have recommended that the case be thrown out and the charging order be declined, but they have passed it on to another district judge, who said that it needs to go to trial, but when we received the court papers it said it was another directive hearing.......each time we go to court the claimants are adding costs of £1500 please please please can you advise what we can do to prove that her ex has no equity or beneficial interest in the property , and how to get his name off the property. Also we have been given different advice from different solicitors....one says we need to apply for a TOLATA (transfer of land and trusts act) before we go to court , which costs more than £6000 and another solicitor says we don't need a TOLATA. Which is correct. The judge won't consent to an order to remove her ex's name from the property without an application......but what sort of application? Please help
Submitted: 1 year ago.
Category: Law
Expert:  Clare replied 1 year 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.
How old are the children now?
Clare
Customer: replied 1 year ago.
The children are 12 years old and 9 years old
Customer: replied 1 year ago.
How do we stop this charging order being placed against the property and how do we take my daughters ex partner off the property title so that no charges can ever be put against the property again
Expert:  Clare replied 1 year ago.
For clarity - will her ex co-operate - and how much is the new debt?
Customer: replied 1 year ago.
I do not want to be called I'd rather have an answer here in writing
Customer: replied 1 year ago.
Her ex is in full cooperation he has agreed all along that he has no equity or beneficial interest in the property. The new charge is for £6500 approx and they have added a further £3000 approx in costs for attending court
Customer: replied 1 year ago.
Her ex is not working at the moment ,I believe he had previously been in contact with the credit card company to arrange to pay back in instalments, but the card company had rejected this. I'm afraid I do not have solid evidence of this
Customer: replied 1 year ago.
Is a verbal agreement binding in law
Customer: replied 1 year ago.
Are you still there?
Expert:  Clare replied 1 year ago.
How much is the house worth and how much is outstanding on the mortgage?
Customer: replied 1 year ago.
Your site said that you would be able to give advice within 30 minutes. It's nearly 30 minutes and I have received no advice yet, only questions, which could have been asked in the first few minutes.The house is worth approx £120,000 her outstanding mortgage is approx £80,000
Customer: replied 1 year ago.
I know that when couples split any jointly owned assets are usually split 50/50 but if there is a verbal agreement is this not legally binding? or if it can be proved that one partner contributed a far greater proportion will a judge rule that it is an exceptional circumstance and that the split should be different in proportion ?
Expert:  Clare replied 1 year ago.
The starting point is that a Declaration of Trust needs to be prepared immediately confirming that whilst the property is owned in joint names it is held by them for the benefit of your daughter alone
This needs to be Registered at the Land Registry so that no further debts of the ex can be set against his share
I assume that this has not yet happened?
Customer: replied 1 year ago.
She went to a solicitors and they both signed a declaration of trust before the last court hearing, but this was after the date of the interim charging order. Does she also have to apply for TOLATA That is at a cost of more than £6000 which is beyond her means, is that the only way she can remove his name from the property. The judge at the last hearing saw the declaration of trust but told her to apply for TOLATA
Expert:  Clare replied 1 year ago.
This is of course only a small part of the problem.
The difficulty that you face is that the Court has to be fair to the Creditor who had no way of knowing that the ex had no interest in the property as no Notice had been filed at the Land Registry.
Expert:  Clare replied 1 year ago.
Well the fact that there is a Declaration of Trust is a good starting point - do make sure it has been supported by the appropriate Land Registry Notice.
Customer: replied 1 year ago.
So how does she stand with her verbal agreement which was made in 2007, whereby he relinquished his share in the property in exchange for not paying the mortgage nor maintenance for the children, she also paid off his previous charge due to the fact she didn't seek legal advice, . But I believe a verbal agreement is binding in law if 3 elements are met, one of which is mutual consideration, whereby there is an exchange of valuable goods or services, by settling his last debt she has fulfilled her part in the verbal agreement, wouldn't you agree.
Customer: replied 1 year ago.
There is now an entry on the land registry documents
Expert:  Clare replied 1 year ago.
The reason the Judge is suggesting a TOLATA claim (which does NOT need to cost £6,000 or even a tenth of it (well maybe a tenth)) is the problem of being fair to the Creditor.It would be too easy for every debtor to say "oh there us an agreement that all of the equity belongs to the other owner" - so whilst yes the verbal agreement is binding on the ex it is NOT binding on his creditor.
Customer: replied 1 year ago.
We were told by our solicitor that a TOLATA application would cost over £6000, is that incorrect. How do we apply for TOLATA and what dies it actually do or be used for
Customer: replied 1 year ago.
We have been dealing with a local solicitor since 2009 who has never suggested a declaration of trust nor a TOLATA in all the time we have been to see him. The solicitor knew that we were trying to get my daughters ex partner off the title, should the solicitor have advised us to do the above action years ago.
Expert:  Clare replied 1 year ago.
To be blunt yes he should have done and that would have protected your daughter fully.He should also have told your daughter that there were other options for her to protect her investment in the property but still receive Child Maintenance.However - the Judge has suggested the Tolata route as this would allow the court to determine what 'share " each of them have in the property - on the basis (I assume) that this would then overreach the claim by the second creditor.
Customer: replied 1 year ago.
How does she go about applying for TOLATA and where should she apply and how long would it take for the application to go through
Expert:  Clare replied 1 year ago.
Whilst I am not convinced of this as an option it is not unduly difficult to start the action especially when it will not be opposed.The process is detailed herehttps://www.slatergordon.co.uk/media/5139437/land-disputes-a-guide-to-procedureweb.pdfand the form is herehttp://wbus.westlaw.co.uk/forms/pdf/cpf00151.pdfMy concern is that there should be no need for this as it should be dealt with within the Charging Order applictaionI do however need to research this to understand why the court haven't done this and I am due in a meeting - I will expand on it later if that is ok
Customer: replied 1 year ago.
Yes please get back to me ASAP. How will you contact me. I just need to let you know that it was the judge who said my daughter needed a TOLATA before the next hearing on 8th January 2016, he said he could do nothing without an application.
Expert:  Clare replied 1 year ago.
I will simply continue on this thread - you will be notified when i do.Thank you for that information - i do think we can resolve this - is the matter in Derby?
Customer: replied 1 year ago.
No it is in Sheffield county court
Customer: replied 1 year ago.
Hi Clare, were you able to find any more information for me about my daughters property
Customer: replied 1 year ago.
Hi Clare, did you find anymore information for me
Customer: replied 1 year ago.
I am still waiting for more information from you Clare. You said that you would research to understand why the court are asking for a TOLATA .
Expert:  Clare replied 1 year ago.
My apologies for the delay - we are all working lawyers and it was an unusually long day.
Where there is an applictaion for a charging order on a jointly owned property the co-owner (in this case your daughter) is entitled to make representations to the court and explain why it would be unfair to them for an Order to be made.
Given the evidence that they had been separated for so long and he had never paid child maintenance and that she had paid all the mortgage payments from her sole account, coupled with the evidence of her attempts to remortgage I am at a loss to understand why the court was not willing to refuse the Order in any event
I assume that all of this was indeed presented to the court in a coherent way which was backed up with evidence.
However to a certain extent the argument is moot.
You have tried that option and it has not succeeded. You COULD appeal but again that increases the expense and it is already out of hand.
That being the case I fear you will have to issue the Tolata Claim and ask the Court to agree that your daughter is entitled to 100% of the equity.
As I said I do believe it could and should have been dealt with within the Charging Order applications - but clearly the Court will not agree
Clare
Customer: replied 1 year ago.
Does my daughter have to go through a solicitor to apply for TOLATA or can she fill out the forms and send to court herself
Expert:  Clare replied 1 year ago.
Hi
She is entitled to do it herself - and in view of the quote you have been given she should do so.
I will check the draft paperwork if you wish
Clare

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