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James Mather
James Mather,
Category: Law
Satisfied Customers: 22629
Experience:  Senior Partner at Berkson Wallace
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When I separated from my ex-partner, Marie, (not married) I

Customer Question

When I separated from my ex-partner, Marie, (not married) I transferred the house we lived in into her name and drew up a mortgage (legal charge) for roughly half the value with a term of 4 years (which ends in 2015).

Now I have inherited a house so no longer need to call in the mortgage in 2015. Marie is wanting me to waive the charge on the house and transfer the whole to her name. I do not want to do that, and have legal advice that there is no possible obligation for me to do that.

We have a daughter, Freya, who is now 14. She is being strongly effected by the conflict about this and I want to find the simplest way of doing the following:

1) To make sure that the charge on the house (£230,000) is available for Freya in the future (after she is 21) if she needs to buy a house or for some purpose which is for her benefit. In effect to transfer the charge on the house to Freya.

2) To make sure that my ex does not influence Freya to waive the charge in the future.i.e. to have some external control on the legal charge (not myself)

3) While Freya does not need the money to allow Marie, her three sons and Freya to occupy the house free of charge.

4) If Marie is still occupying the house on her death, to transfer complete control of the Charge to Freya to do what she wants with it.

5) If Freya dies before Marie, to allow Marie to occupy the house until her death and then the charge to be transferred to my other two daughters Sophie and Chloe (not daughters of Marie)

6) If Freya and Marie agree to move to another house, to transfer the charge onto the new house.

Do I need to go to the expense of setting up a trust for this purpose or is there a simpler instrument, such as a letter of intent, which would give Marie the security she needs but make sure the money was available to Freya when she is grown up?
Submitted: 5 years ago.
Category: Law
Expert:  James Mather replied 5 years ago.
Can you just clarify if the only charge on the property is yours?
Customer: replied 5 years ago.

Yes, the only charge on the property is mine. It is Freehold.

Expert:  James Mather replied 5 years ago.

Why does it end in 2015?

How old is Freya?

Customer: replied 5 years ago.

The charge is in the form of a mortgage with a term of 4 years from September 2011.


Freya's date of birth is 16/10/1998 so she is 14


Expert:  James Mather replied 5 years ago.

So is Marie repaying the mortgage?

Will it be repaid in 2015?

Customer: replied 5 years ago.

No, she is paying nothing - the mortgage states that she should pay £300 per month but she has only made two payments.


I have agreed to overlook this, I want her and Freya to feel secure and I don't need the money.


Therefore the mortgage will be repaid if/when the house is sold.


I am willing to change anything on the mortgage and to give indefinite term but want to make sure that if Freya needs money for a big thing in the future (like buying a house) that Marie is obligated to either pay her the balance of the charge or sell the house.

Expert:  James Mather replied 5 years ago.

Will Marie agree to this?

Customer: replied 5 years ago.


Customer: replied 5 years ago.

Yes she will, she says

Expert:  James Mather replied 5 years ago.

I am not certain what you mean
by saying that you want to make sure the house charge of £230 is available for
Freya in the future after 21 (or 18, or whatever). Either she is getting a
charge on the house occupied by Marie or she is getting the house.

Until Freya is 18 her
interests must be looked after by a trustee. After that, he can look after
things herself.

My suggestion would be to see
a solicitor who will draft a deed of trust whereby the house is held on trust
for Freya until she is 18, and thereafter it becomes hers.

Marie would be granted a life
interest in the house to live in it until she dies or no longer wants to. After
that, it would then go to Freya to do with as she wishes.

The difficulty is to grant an
interest to Marie which can be determined at any time that Freya wants it to be
if for example she wants the money.

You are also, cannot dictate
what happens to it after Freya has got it. Either she has it or she does not
have it so you cannot say that XXXXX XXXXXves in the house for life, or until
Freya decides that she wants the money.

You also cannot say that when
Freya dies the house is to go to your step children.

On these facts, you are going
to have to rethink what you are doing , because at the moment you are making
things so complicated that they are unworkable.

Customer: replied 5 years ago.

I already understood all your points, which is why I am asking for creative advice.


Two possibilities occur to me which you haven't mentioned:


1) Setting up a trust which can be terminated on Marie's death whose primary beneficiary is Freya and secondary beneficiaries are Sophie and Chloe. (is this possible). The trustees can then ensure that the money represented by the charge is used for Freya.




2) A letter of intent signed by me saying that I will not repossess the house after the term of the mortgage and will only do so if Freya needs the money.

Customer: replied 5 years ago.
Relist: Incomplete answer.
Expert:  James Mather replied 5 years ago.

Tell me exactly what you want to achieve and I will tell you how to get there. What you wanted initially isnt doable.

You can give Marie a life interest which ends on death or Freya gets it when Marie dies or remarries or cohabits.

Would that do it.

Freya might having nothing at 25 if she needs it though

Customer: replied 5 years ago.

What I want to achieve is set out in the attached two letters of intent / commitment. Can you comment on them or tell me a better way to ensure the same outcomes.


Thanks for your help.







Letters follow:


Marie Postles





7th March 2013





This letter is to set out my commitments that we have been talking about in writing.


1) Although the term of the Legal Charge on the house is due to end in 2015, I agree not to call for a repayment of the charge, nor enforce the repayment terms, unless Freya needs the money for some substantial reason in the future and after she is 18.


2) If you die whilst the Legal Charge is still held on the house then I will transfer it to Freya and she can decide what to do with the house if she is over 18 and if under then I will hold it in trust for her until she is 18 and then transfer the charge into her name.


3) If Freya dies before you then I will not call on you for repayment of the charge, and you can have a lifelong security to stay in the house.


4) If you and Freya want to move house, the Legal Charge on Bradford Road must legally be discharged but I will agree to a similar mortgage being taken out on the house you move to as long as:

a) You pay the legal charges for the this process

b) The move does not take you out of UK Legal jurisdiction

c) The charge is not put into jeopardy by adding another mortgage or another person apart from you in ownership of the property.


5) If you move house and a similar mortgage is taken out on the new property then the commitments in this letter will apply to the new mortgage.


6) If I die, my Will will instruct my executors to follow these commitments.



Marie Postles






Bill Palmer

Suite 7, 3 Edgar Buildings






7th March 2013



Dear Bill


I agree that :


1) The commitments in your letter dated 7th March 2013 are satisfactory to me and no other commitments by you about the house or the mortgage are implied or unstated.


2) That I will take full responsibility for maintenance and insurance and legal costs on this house (170 Bradford Rd) or any house in the future on which we agree a similar mortgage.


3) That, in the future, if Freya needs the money held in the charge that I will either repay the charge if I am a position to do so or positively support the sale of the house in order to repay the charge to use for Freya's benefit.



Expert:  James Mather replied 5 years ago.

you still owned the house all you needed to do was simply transfer the house to
Freya (to be held on trust. If necessary, until she is 18) but grant Marie the
right to live in it for life or until she no longer wants to or cohabits in
this house or another or remarries.

this stage in time, she owns the house and you have a charge on it which it
appears finished in 2015, although why there was a time limit on it I have no
idea because it appears that there was no obligation to repay it in any event, or was she supposed to repay in full in 2015?

is very difficult to answer you with any degree of accuracy without knowing the
content of that legal charge.

you please confirm that your interest is simply the charge and how you propose
to keep the charge extent from 2015 onwards if Marie does not agree?

facts appear to be a bit confused because you say that you transferred the
house into her name and you have a charge, but then you say that she wants you
to waive the charge and transfer the whole house to her.

which is it? Whose name is XXXXX XXXXX in now. How much is the charge for and why
does it finish in 2015?

Customer: replied 5 years ago.

The house is now totally in her name. I have a £230,000 charge on the house.


before we did the deal the house was in my name but now I only hold the charge.


It finishes in 2015 because she agreed originally to either sell the house and pay me the £230,000 or pay me the £230,000 by that date. At that time, I needed the money to get on with my life since the house represented all my capital. I agreed to give her four years to arrange things.


Now I have inherited a house, I no longer need to get the money out of the house and my priority is to:


1) Secure Freya a home for as long as she needs

2) To secure the charge for Freya's future use

3) If it doesn't conflict with the (1) and (2) to give Marie a sense of security.


The Legal Charge does set out a repayment scheme (£300 a month for four years and then a lump sum at the end of the term) which Marie has not kept to and I have not enforced.



Expert:  James Mather replied 5 years ago.


am going to give you the legal solution which is to transfer the property into
your sole name again and then do what I suggested earlier.

doubt, she will resist transferring it into your sole name (or even joint
names) because she thinks that she has some kind of equity in it (I don't know
what it's worth), in which case, you can threaten to make an application to
court to force a sale of the house unless she agrees to transfer it back to you.
I appreciate that you may not want to do that, but the situation you are in at
the moment is that you are the charge on the house which she has not repaid and
that she does not want to repay and is not going to repay. Ignoring the 2015
date therefore the charge is going to remain.

can assign the charge to Freya, but unless Marie agrees to grant some right to
Freya over the house, then you are faced with court action.

is a pity that you had not taken legal advice before you transferred the
property into her sole name.