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Is application for an Order of Sale the only way?

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26 Apr 12 #326672 by Getting It Right
Topic started by Getting It Right
I''d be very grateful for any sound legal advice in relation to my query.

Background:
I and my ex were never married and cohabitated for approximately 8 years. We have a Declaration of Trust which sets out how we should go about allowing one another to ''buy'' our share of our house if we separate. I''ve been informed by the same solicitor who drew up the document since that it is not worth paper written on as there is no longer ''trust'' in our relationship between my ex and I. She has a son who is now 18 years old and just finishing his first year at university - living away from home. My ex lives in the 3 bedroom house we jointly own and have a joint mortgage for. There is very limited / no equity in the property and in any event I do not seek any financial gain from the property.

Since seperation:
After we separated 2 years 9 months ago I moved into a separate bedroom and we lived separate lives in the same property until I moved out 2 years ago, after a family friend agreed I could live effectively rent free paying only amenities to allow me to continue to contribute half of the mortgage.

My ex wanted to keep the house whilst I wanted to relinquish any right to the property & have my name removed from the mortgage. My ex agreed to explore of arranging a sole mortgage and if not possible agreed to sell the house I agreed to continue paying 1/2 the mortgage whilst she was doing this.

We also had a verbal agreement she would rent out the bedroom I vacated and keep a larger proportion towards bills and give me the remainder [about £100 a month] as I was struggling financially. She rented out the bedroom when I moved out, but retained all of the rent herself. She claimed she was letting the room out to a succession of friends for free [despite me seeing an envelope with rent and an amount written on it when I visited the property on one occasion].

My ex ''allegedly'' explored the possibility of having a sole mortgage / having a relative on the mortgage with her but this has not been accepted by the mortgage company. I say alleged as the mortgage company would not discuss with me after I signed the form to say I was happy to be removed if possible. My ex also refused to put the property on the market claiming she could afford to pay the mortgage herself and therefore would not sell. My ex had put £30,000 of her own money towards the purchase of a pervious house we jointly owned and because of the decline in property prices the property was no longer worth sufficient for her to recoup this amount after the mortgage repaid.

Since I stopped contributing towards mortgage:
Therefore as of January 2011, having previously always contributed half of the mortgage, I stopped contributing and instead started to pay my landlord a full rent. My ex informed me as of January she was renting one bedroom and receiving rent from this tenant. She did not discuss this arrangement prior to making it with me and I expressed dissatisfaction at the arrangement as no tenancy agreement was drawn up.

My ex has fallen behind on the mortgage by one payment; by agreement with the mortgage company [without consultation with me] in May 2011.She has told me on several occasions in 2011 how she was struggling to make payments. She agreed to put the house on the market, but chose an estate agent and signed their contract without me. This was May 2011. She also put the house on the market £10,000 above the estimate given by the estate agent. My ex moved from the property to live with a new partner for a few months and rented out a second bedroom, again without a contract, leaving her son in the property in the third bedroom. Consequently when I visited the property it looked like very messy student accommodation and I could understand why no one who viewed the property with the estate agent made an offer. It was only after I instructed a solicitor to write to express my dissatisfaction with the state of the property and price the house was on the market that my ex dropped the price to the valuation price.

In September 2011 my ex informed me both tenants had moved out, her son had gone to university and she was living in the property alone once again. She asked for me to allow the property to come off the market so she could rent out two of the bedrooms. I refused to give permission as I wanted the house to be sold as it was the only way I could be free of the financial and legal ties with her.

Ex accepts offer on house for sale:
In October 2011 my ex accepted an offer for the asking price on the property. She instructed the same solicitor who originally drew up our declaration of trust to deal with conveyance. I was asked to pay £1,600 up front towards sale costs by the solicitor as my ex insisted on any profit after the mortgage be paid go to her. I was so desperate to be free of the financial and legal ties with my ex I agreed and borrowed the money from my credit card. The sale proceeded, although she used delaying tactics so the exchange date was due to be mid March 2012.

Ex pulls out of sale:
She pulled out of the sale without any communication with me at the beginning of March 2012 and I was given no explanation other than she did not want to sell. Thankfully I received all £1,600 back from the solicitor without any major fuss and have paid it off my credit card.

The current situation:
The estate agent refused to continue to have the house on the market given the circumstances and the house is therefore not currently on the market.

My ex has not communicated with me since, I visited the property today and again a tenant is living in one of the bedrooms.

The sale price we had previously secured covered our mortgage which is £194,000, but I have been advised it is extremely unlikely the property would achieve sufficient to cover the mortgage now or in the foreseeable future.

I''m aware my ex is currently making the full mortgage payment using her credit card. I''m extremely scared she will allow us to fall further into arrears and the house to be repossessed. In the mean time because of the huge mortgage to my name I can''t even secure a loan for a couple of thousand let alone look to buy a property myself.

The legal advice I''ve had:
I was advised some time ago the only way to protect myself / get myself off the mortgage was to apply to Court for an Order of Sale and that this was likely to cost my upward of £2,000. My understanding of this is I would then only achieve the objective of the house being on the market with the potential for further delay tactics by my ex and the very real possibility she would pull out again. I don’t have £2,000 or even £500 I could use towards legal costs. I have also already checked with CAB and I am apparently not entitled to legal aid whilst my ex is apparently entitled give her financial circumstances. In any event my ex has affluent parents who have friends who are partners in the local solicitors firm. My ex had told me several times she will not let this go without a fight, she believes she will win, and is perfectly happy to allow it to ‘Ping-Pong between us’ [her words] whilst I accrue legal costs.

So my question is....
Can anyone shed any more light on a positive way forward? I want to move on with my life and I don’t want the fear of financial ruin hanging over me. I feel I have tried to do the ‘right thing’ be supportive of my ex even after our separation to allow her and her son to continue to live in the ‘family home’ until he left for university. But now I feel my ex is taking the proverbial, is manipulating and self-centred and is certainly not in my opinion being reasonable.

Sorry for war and peace, I didn''t know which bits were relevant!

Thanks for reading and for any response!

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26 Apr 12 #326682 by cookie2
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Getting It Right wrote:

I''ve been informed by the same solicitor who drew up the document since that it is not worth paper written on as there is no longer ''trust'' in our relationship between my ex and I.

Huh? That sounds like a load of rubbish to me. Of course there is no longer trust. the whole point of a deed of trust is to allow for this exact situation. As long as you had legal advice when the deed was signed, she would have to show very good reason why the deed of trust is to be set aside. That would be an uphill struggle for her.

I was advised some time ago the only way to protect myself / get myself off the mortgage was to apply to Court for an Order of Sale and that this was likely to cost my upward of £2,000.

Indeed. This is a civil matter and you will need to take court action to resolve it. However in keeping with the above, you will get s share of the equity of the house, probably 50%. Your ex would have to be pretty stupid to let it go to court, when you have offered to let her keep the entire house if she cooperates. I would tell her that she has 2 choices:

1) You will sign the house over to her 100% if she pays the necessary fees and gets you off the mortgage.

2) You will take court action to recover your 50% of the equity as described in your deed of trust through a sale of the house.

If she does not respond or does not choose then you will go with (2).

It''s very easy to be spiteful when it doesn''t cost you. But very few people stick to their spite when it will actually cause them to be worse off!

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26 Apr 12 #326690 by Getting It Right
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Thanks for your advice Cookie2. I understand what you say, however what I failed to mention was the declaration of trust also stipulates my ex would get the first £30,000 [her deposit] of any equity in the property after sale costs.

I assume and guess my ex would also assume a Court decision would figure that into the equation. Therefore my ex wouldn''t feel obliged to settle amicably out of court by actively seeking to have me removed from the mortgage/property deeds.

Wouldn’t that mean I am spending upward of £2,000 legal costs because she has me over a barrel with this for years and I’d have no chance of recouping any money what-so-ever?

For certain at this stage if I had £2,000 savings I would go to Court with no hesitation, but I don’t have the money and no real means of repaying a credit transfer on a credit card if I borrowed the money by those means.

There is the fear I could come to regret not spending £2,000 if it’s possible I could face bankruptcy though the house being repossessed instead.

Again thanks for any advice.

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26 Apr 12 #326692 by cookie2
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Hmm yeah if there is less than £30k equity in the house then you don''t have much to bargain with, apart from future market forces. If she could get the house put into her name now without having to pay you anything then she is pretty stupid to leave it jointly owned. If for example in 5 years time the house has risen in value to £60k equity then you could get £15k out of it.

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26 Apr 12 #326694 by Getting It Right
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Thanks again Cookie2.

What should be the next step I take? Is it sufficient for me to formally write to my ex or do I have to instruct a solicitor to write for me? Is it a litigation matter for a litigation solicitor or family matter? Should I explore how much it actually costs to have a matter like this taken to court for an Order of Sale to be made first because I believe she will think it an idle threat, because she knows I am not well off. Is this a legal matter I could represent myself in?

so many questions sorry!

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26 Apr 12 #326697 by cookie2
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Firstly you could try writing to her, expressing your desire to transfer the house and mortgage to her, and how it would benefit her (future property price rises etc).

It''s not a family matter since you''re not married. It would be a civil matter. Whether you need a solicitor or not, I guess would depend on your expertise and confidence.

Many solicitors do a free initial half hour consultation so it''s probably worth doing that - you lose nothing.

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