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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 18744
Experience:  I have been practising for 30 years.
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I have a question about my home, which I have lived in and

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Hi,
JA: Hello. How can I help?
Customer: I have a question about my home, which I have lived in and paid the mortgage on for over 16 years
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: not as yet, as I am just starting to take steps unfortunately own the mortgage with an ex-partner who I left over 13 years ago
JA: Where is the home located?
Customer: he contributed to the mortgage for the first 3 and then after nothing for the next 13 years and now he wants payment from me for him to come of the mortgage and deeds Liverpool
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I think that is it in short, thanks

Good morning. I will assist with your question - be aware this is an email not chat service.

are you in a position to pay him a sum?

not married i take it?

Customer: replied 1 year ago.
When we originally split I gave him a car that was worth £15,000 at the time in exchange for the house, as we had not lived in the house together long and I couldn't afford to buy him out, so he accepted this as payment. Bearing in mind the car was paid for with a money from a secured loan, which I am still paying today, he did not work after the first two years of us buying the house, so I paid all the mortgage/secured loan payments by myself from then on, the deposit we used to buy the house was from a joint loan which we both paid back and then any money for home improvements was paid for using second loan on the mortage and then a secured loan against the home, both of which I am paying for and have since they were taken out, so he has no money invested in the house, and any payments he did make I have more than covered with the car which he was given and that I still pay for
Customer: replied 1 year ago.
I have equity in the home but I will not pay him a penny more, as he has already received payment for the mortgage payments he made
Customer: replied 1 year ago.
Not married no
Customer: replied 1 year ago.
we do have a child together

There is good news and bad news. 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.

So the good news is that everything that you have paid since he moved out will be taken into account along with the GBP15,000. It’s a shame, a great shame that you didn’t draft that into a deed at the time and get him to sign it because if you had, we wouldn’t be having this conversation and you wouldn’t potentially be facing what could be an expensive legal argument for you both.

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

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Thank you.

If you still need any points clarifying, I will still reply because the thread does not close.

Best wishes.

FES

Customer: replied 1 year ago.
Hi, thanks for the advice so far. Does it make a difference if we have a child together? We have a 14 year old son together.Thanks

It does indeed.

Unless a sale of the house produces enough money for the parent looking after the child(ren), the resident parent, until the youngest reaches 18 and produces a surplus for the non-resident parent, the sale of the house is not on the cards until the youngest child reaches 18.

Both parents are under a duty to provide a home for dependent children until they reach 18. Only then would the house be sold.

I am glad to help. Please don’t forget to use the rating service because it means that I can continue to provide affordable and timely legal advice to people with similar problems.

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Kind regards

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