Due to the end of my wife's exisiting mortgage deal we decided to remortgage the house. Her ex has a charge on the property due to the divorce stating that when the youngest leaves school (won't be for another 10 years at least) we have to pay a percentage over the "first mortgage" value. That's fair enough - not arguing there...
...but, the conveyancing solicitors have today said that we cannot remortgage without her ex's agreement (something he is unlikely to give) due to this charge as "he would not have first call on any monies owed from a sale" (I assumme should we default on the mortgage - as I see it anyway, he will still be entitled to his propartion of the money over and above the initial purchase price and the mortgage company has told us that they have no problem with the charge). A further difficulty is caused by the fact that we have no idea where he is - seemingly nobody does as we have exhausted all lines of enquiry, the only thing we do know is that he was in the US at the start of this year (before his former solicitors lsot touch with him and dumped him).
Basically, are the conveyancers correct? If so, is there any legal course we can take? It's not even as if we are not willing to pay him off but we currently have no way of doing so and my wife's (former) solicitors are even holding some money for him that they can do nothing with (he became entitled to it after we went through the court to get his name removed from the property title, something he should have done in September 2005 but we only mananged to get done earlier this year!)
Any advice is greatly appreciated.
Should have mentioned (don't know if this makes any difference) that this was suppoesd to be a Clean Break.
I dont think this is right. A charge exists on the land registry nothing to do with the mortgage. The 1st charge is always the mortgage company so they always get there money. 2nd is the charge you are refering to. Have a word with the mortgage company. Do not default on the mortgage. You will only make things worse for youselves. Chris.
I fear the converyancers are probably right. Anyone who has an interest in the property by way of charge must give permission for any change to take place of that I am sure otherwise what is the point of a charge?
Do you have access to a good financial adviser or even if you are dealing with one it might be a good idea to get a second opinion from another as to what you can do but I do have a feeling you are stuck with this situation if you cannot contact the ex. I am in a bit of a hurry at the moment but I will have a think about this one and send you a Private Message if I come up with anything.
The strange thing is that we contacted the mortgage company yesterday and they said that they were waiting for the solicitors to give the go ahead, whereas the solicitors were said that it was the mortgage compant that were delaying things, so we have no idea this morning where we are!!
How typical of one company blaming the other! Drives you nuts dont it?
The only thing i know on this subject is our case.
Sorry if this turns out to be a long one.
I remortgaged my property to pay off my husbands FMH as we couldnt afford two mortagages. He was trying to sell it vacant possesion as he moved into my property. His former wife wanted her name taken off the deeds as she couldnt get a mortgage in her own right whilst still on the FMH one.
My name was put on the deeds to their FMH at the time of remortgaging.
We FINALLY sold it two years later, I got fed up with estate agents and put one advert in the newspaper advert column and sold it! Weird that int it? Two years with estate agents and hey presto it was me who sold it!
Anyway we received a letter from his former wifes solicitors saying "that we understand a search has been done on the FMH. How did they no this? They must of registered their interest on it (although we didnt know this at the time!) The day we recieved their letter was the day the monies went into my bank! (OH! how i laughed!) They had known from a letter 15months previously that it was on the market! The letter they sent moaning about the search that had been done said " We require you to confirm by Monday (we received the letter Friday)that you do not intend to deal with the property in such a way so as to defeat our clients claim for Ancilliary relief. Failing which, we anticipate receiving instructions from our client to make an application for an injunction. My husband wrote back and said he had no intention of trying to defeat their clients claim!
The next thing we knew we had a Section37 order (an order to stop my husband disposing of the monies or property) served on us! Two months AFTER the sale. They got this order ex parte and never showed the Judge I part owned it. At the FH last week they said they didnt know????????? The Judge short from calling them liars, i showed them all the letters we had from them said there would be cost implications if this matter cannot be sorted by way of offers!
Anyway the point is............I think when an interest is registered on a property, it just warns the buyer of that! The person who has benefit of the registered interest has to apply to the courts to make it an order.
If this is the case then surely you can have your say at any court hearing (unless its done ex parte and even this the Judge normally gives you so many hours or days to have you say)to put your case forward as to why you want to remortgage. I'm sure they must realise that lives change and is it your fault you cant find him? As long as you can show you have all the evidence of searching for him.
I wish you luck in all this but my advice is dont give up! hassle both the solcitor and mortgage company!