The first thing you do is agree on who is buying who out for how much money.
The person doing the buying then needs to ascertain whether the existing lender will allow the seller to be removed from the mortgage or if they will not (commonly) the person doing the buying out needs to arrange a mortgage with another lender.
The situation with regard to how much money is not particularly favourable if you put a lot in and the other didn’t and there is no agreement.
If 2 people own a property are not married and there are no children and there is no agreement to the contrary as to what will happen when the property gets sold, then it is split 50-50. It doesn’t matter what each person puts in by way of deposit and what each person puts in over the period of ownership, it split 50-50. It does not matter that one of them pays all the mortgage and puts all the deposit in and the other one sits by and does nothing but drink tea, it is split 50-50.
The courts have decided that if a couple are buying a property together they would have an agreement if they were putting different amounts of money in and wanted money out in proportion. They would safeguard their “asset” by putting it in writing.
Relevant case law is Kernott v Jones.
I will say that I don’t agree with this decision but I don’t make the law, I just regurgitate it. The case does go on to say that if the couple were living in the property and one party moves out, then any contributions to the capital or fabric or improvements of the property, after that person moved out but which were made by the one remaining, will be taken into account with the final division of assets from a sale of the property.
What the case law goes on to say is that any contributions to capital (not interest) and any maintenance or payment towards the property other than the mortgage, after a couple split up will be taken into account in the division of the assets. The reason it all isn’t taken into account is that if you have the benefit of living in the property then you have the burden of paying the mortgage.
Not relative to the case law but if either party wants the property sold, then the reluctant non-sale wishing party can be taken to court for an order for sale under the Trusts of Land Appointment of Trustees Act s14 and they would usually get the order against the reluctant seller and get caught and solicitors costs also awarded against the reluctant seller. If anyone ever threatens to apply to court for an order for sale, my advice to the other party is to get the estate agents sign up straightaway.
Meanwhile, a person is not responsible for the mortgage or the bills of a house that they do not live in although they remain liable to the lender if the other co-owner stays in the property but doesn’t pay.
However, that all depends on whether either party decides to be ethical and have what they feel they are entitled to based upon what they put in, rather than simply what the case law says. You can agree what you like between you.
If she can’t afford to buy you out, then no one can be compelled to continue to own a property which they no longer wish to own and they are able to force a sale through the courts if necessary.
The remedy is to make an application to court for an order for sale under section 14 of the Trusts of Land Appointment of Trustees Act (the Act).
Anyone wishing to sell may find that a strongly worded letter from a solicitor threatening a court application and an application for costs, may focus the mind without actually having the need to get to court.
If I were advising anyone who has received a letter threatening an application to court under the Act and an application for legal costs, I would tell them to get the agents sign up immediately and cooperate with the sale because if they make the court application, they are likely to get it and they are likely to get costs awarded against them.
If her son is over 18, he is out of the equation except to say that he could possibly buy the house with her if her income is not sufficient for lenders purposes.
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