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Joshua, Lawyer
Category: Law
Satisfied Customers: 31743
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I have had a mortgage with a friend for one year and i want

Customer Question

Good morning
JA: Hi. How can I help?
Customer: I have had a mortgage with a friend for one year and i want to move on
JA: Where are you? It matters because laws vary by location.
Customer: But my friend is unwilling to. Can you please help me with advise?
JA: What steps have you taken so far?
Customer: I have tried speaking to her to either buy me out or me buying her out but she is unwilling
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I want to know what my options are. I am happy to move out of the property but needs to know my options first
Submitted: 16 days ago.
Category: Law
Expert:  Joshua replied 16 days ago.

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

Expert:  Joshua replied 16 days ago.

  1. May I confirm if there is any minimum fixed period associated with the mortgage product during which early termination fees would apply please?
  2. is your friend likely to be in a position to take over sole responsibility for the mortgage given their financial status?

Customer: replied 16 days ago.
We have the mortgage fixed for 5 years
Customer: replied 16 days ago.
Am happy to type as am at work
Customer: replied 16 days ago.
To be honest i don't know of her current financial situation
Customer: replied 16 days ago.
We took the mortgage for 30 years and its fixed for 5years at the moment. She is claiming she can afford the rent but i want to move on and will need my deposit and whatever i put into the property back
Expert:  Joshua replied 16 days ago.

  1. thank you. Do you have any declaration of trust agreed between you as regards ***** ***** you buying the other out?
  2. do you accept that whilst there is a mechanism for you to seek to force a sale or for your housemate to buy out your share which with your permission we will discuss shortly, it is likely you would be responsible for any early termination fees associated with the mortgage (if any) given it is your wish rather than your housemates to end the product early?

Customer: replied 16 days ago.
No we do not have any declaration
Customer: replied 16 days ago.
if it comes to that i am happy to pay for the fees and move on
Expert:  Joshua replied 16 days ago.

thank you. Ideally of course you may be able to agree matters between you as regards ***** ***** interests in the property. If agreement cannot be reached in this respect, either of you would have recourse to the courts under section 14 trusts of land and appointment of trustees act to require the other to buy out your share or for the property to be sold or indeed of course either of you could make a market offer for the others share.

Expert:  Joshua replied 16 days ago.

In terms of your respective shares in the property, where you own a property as joint tenants, or tenants in common there is a presumption that each of you own 50% in the property. It used to be quite difficult to depart from that presumption however, following the decisions in Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53 it is now open to a party has contributed more than the other two are property to dispute that they intended to make a gift of the difference between the respective contributions as a gift to the other. Evidence that can be adduced in support of that position would include that there was otherwise no sharing of finances other than perhaps a joint expenses bank account but otherwise your respect of finances were kept entirely separate and there being no documentary evidence or other evidence of agreement between you that such difference would amount to a gift. Where can be demonstrated, an application can be made as above under section 14 of the trusts of land and appointment of trustees act to request a court determine your respective shares in the property based on your respective contributions.

Expert:  Joshua replied 16 days ago.

As we have discussed above, as part and parcel of any determination of your respective shares whether this is by agreement or by application to court, it will be necessary to consider who is responsible for any early termination fees associated with the mortgage. As I have alluded to above, it is my view that in the circumstances, your housemate would be able to seek to apply such fees as against your share rather than theirs on the basis that they are only payable due to your wish to end the mortgage product earlier than contracted.

Of course, it may be possible to avoid such fees if your housemate is able to take over the mortgage product on her own as typically lenders will waive early redemption penalties if a new mortgage product is taken out with them though they can be some variation between lenders in this respect and enquiries may need to be made in the assumption of course that your housemate is able to potentially service the mortgage on their own

Customer: replied 16 days ago.
Thank you
Expert:  Joshua replied 16 days ago.

I'm glad the above answers all your questions for now. If you have any follow up questions please revert to me.

Customer: replied 16 days ago.
She is unwilling to do any of the above and i want to move out. What are my options?
Expert:  Joshua replied 16 days ago.

as above, if you are unable to reach agreement on the above, in the first instance, you should consider mediation and if this either fails or if the other party is unwilling to agree, then you would need to make an application to court under part 8 for a court order under section 14 trusts of land and appointment of trustees act for an order for sale:

Customer: replied 16 days ago.
If i move out of the house now, can i come back later to claim my share of the property as we agreed on tenant in common principle. She has her child and i have two children
Expert:  Joshua replied 16 days ago.

moving out of the property does not prejudice your right to return unless you for example sublet your bedroom  where of course you would need to end any subletting before you could return.

If you leave voluntarily but your housemate is willing for you to remain, though you would have in principle a right to sublet a bedroom as above, you would not otherwise be able to claim any occupational rent from your housemate for their sole use of the property.

Customer: replied 16 days ago.
I think i will move out and sublet my part of the property
Expert:  Joshua replied 16 days ago.

I'm glad the above was of some assistance

Expert:  Joshua replied 15 days ago.

I hope I was able to answer your question. If you would like to ask me another question in the future, you can add me as a favourite Expert. You'll have the option to do that on your "My Questions" page if you choose to rate our interaction or you can request me by name if you wish. Thank you again for visiting JustAnswer and see you again in the future I hope.