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charge on property, how to force sale

  • naomi8
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29 Feb 12 #315369 by naomi8
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several years ago I moved into my partners house. To enable him to pay off his ex wife I ''lent'' him the money. I now have a charge on the property for half the sale value.
Unfortunately my partner and I have separated and I am living in rented accommodation. My partner is refusing to market the house as he says that I am only entitled to be repaid when the house is sold and that will be when he decides as there is nothing in the agreement that says he has to sell if we part company.
( I would have thought it pretty obvious to the solicitor that I would need this money to purchase myself a house should we separate)
Can I force him to market the house and if so how do I go about it?
Many thanks for your advice

  • LittleMrMike
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29 Feb 12 #315384 by LittleMrMike
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Possibly, but it is most important if you tell me if you and your partner were married or just cohabiting.

It rather sounds as if the property is in his name only. is it ?

A great deal may depend on the terms of the charge. I suspect you would need a lawyer to go over the agreement.

LMM

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01 Mar 12 #315439 by naomi8
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No we are not married.

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01 Mar 12 #315473 by LittleMrMike
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I see. I assumed, from what you said ( that you moved into your partner''s house ) that the house is in his sole name.

What follows assumes that my assumption is correct, ie that your partner is the sole owner.

A sole owner occupier has the right to sell it at any time he likes. If I own a house and have a mortgage, say from the Halifax, then the decision as to when I sell is entirely mine, and it is of no business of the Halifax - as long as I keep to the agreement and make the payments on time. If I don''t, the Halifax can step in and sell.

If the property is in joint names you could apply to the Court for an order for sale, but as previously mentioned, I suspect it isn''t.

When you paid this money, and took a charge on the property did you take legal advice ? And I mean legal advice on your own account - not advice from your partner''s solicitor.

You see, there is an obvious conflict of interest here. Your partner borrowed money from you to pay off his wife. You agreed to lend it to him. Do you get interest ? Does he have to repay you by instalments ? And critically what would happen if the relationship breaks down ? The money must presumably be repaid some time - when ?

The reason why you needed advice on your own account is so that someone on your behalf can start asking awkward questions like these.

Put yourself in your partner''s shoes. He has got the money to pay off his wife. If - for argument''s sake - there is no liability to pay interest on the loan, and if - again for argument''s sake - he doesn''t have to repay the money until he sells, which might be many years into the future - he is getting a damn good deal and you are getting a seriously lousy one. But his solicitor acts for him - not for you.

Can''t you see this ? Well, I suppose you do now. Your partner''s solicitor should have told you to take independent legal advice on your own account. You should have sought separate legal advice and been told to do so.

My gut feeling is that there is something wrong here. I think you need to take legal advice and from someone who has no previous connection with this matter. You may be able to find a lawyer who will give you 30 minutes free and that will probably be long enough for him to have a look at the charge and decide where you go next.

I fear that nobody on wiki could advise - simply because we cannot do so without seeing the terms of the charge.

LMM

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02 Mar 12 #315859 by naomi8
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The solicitor was supposed to be advising me as to the best way to ensure that the money I had loaned him was ''safe'', knowing fully the situation. She was chosen by me and not known to either of us before the situation was discussed. At no time did she suggest each of us being advised by different solicitors. As you say there is no liability to pay interst on the loan, and there is no agreement for him to repay the money until he sells
I would have thought it fairly obvious to the solicitor that, should we part company, I would need to be repaid to puchase my own property and I''m surprised that she did not mention this atall.

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03 Mar 12 #315880 by LittleMrMike
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Naomi, I hope you understand the point I am trying to make.
If the solicitor in question was retained and instructed by you, then (s)he has to look after your interests and make sure you are fully protected.
Assuming for the sake of the argument that this is the case - she was acting for you alone - then it is the lawyer''s job to look after your interests, and this , as you say, should include consideration of the circumstances under which the charge may become repayable. Asking what would happen if the relationship breaks down is indeed an obvious question.
If the solicitor has been instructed by the two of you to draw up a charge, then I think (s)he should have declined to act because of the conflict of interest.
I have said before that I can''t advise you on the charge without seeing it. But I suspect that the position is probably as you say - the charge is repayable on sale.
If - for the sake of the argument - we assume the advice you had was negligent - which it may or may not have been - then you may possibly have a claim. That is a specialised field and most solicitors will not touch it, but there are specialists who will have a look at your case, usually free of charge, and advise on the merits of a possible claim.
LMM

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