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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12195
Experience:  30 years as a practising solicitor.
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This is regarding the property in Scotland. I am aware there

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This is regarding the property in Scotland. I am aware there are differences in laws between England and Scotland.
Following my recent separation with my ex-partner and she has moved out of the house. We have a joint mortgage on the property.
We have spoke and agreed on most of the thing on finances. We agreed to "Buy her out" however I would be paying her by monthly (i.e. I do not have fund to give the money to her without getting another loan) I am trying to avoid borrowing more to save costs.
She is refusing this and wants the lump sum instead. Do I have the right to pay her monthly?
I am aware that things can take a long time to be sorted and we are both jointly liability for the mortgage.
We both agreed to pay 50% share of the mortgage payment until end of September thats when the "2 year fixed rate ends" to avoid early redemption charge.
Any advise would be appreciated. Thanks
Thank you for your question.
You don't have a right to pay her monthly in the same way that she can't demand to be paid out in a a lump sum.
You can reach agreement on either or a combination of both but if you can't reach an agreement then the only alternative is for the property to be sold, again by agreement, or under the supervision of the court. The court has no power to insist that one buys the other out.
So in summary, you either reach an agreement or the house would have to be sold.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 3 years ago.

Thank you for clarifying this.

If she insist on taking to court, would it takes months or years before the case is heard?

Am I correct that the court has no power to decide how much the property would be sold. Is it possible to take years for this to be sorted out if we don't have mutual agreements?

An action for division and sale would take about 6 to 8 months in the sheriff court.
The court would supervise the sale including appointing the surveyor, estate agent and solicitor and would also approve the purchase price on the recommendation of the agent.
The costs of these professional would be deducted from the sale proceeds and the parties would be given no opportunity to negotiate fees. Typically, therefore a sale under the supervision of the court would cost twice that of a sale by agreement.
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