Benificial interest in my home please help

zbeebee

So long story short husband bankrupt in 2010 discharged 2011 letter from or in may 2011 for interest in home to be delt with offer made no further communication till last week now we have paid off secured loan over last 3 years there is 30k equity in our house it is solely in my bankrupt husbands name but we have lived here together for 11 years I have never paid mortgage but have contributed to bills and had home improvement loans for the property. The firm dealing with my husband case are stating I have no interest in my home and are threatening possession of sale. I am seeking legal advice but wanted to see what your thoughts were I want to keep our home but could never raise 30k even with family help and it is my home too. The 3 year dead line is on 24th of this month which is why they are putting pressure on now I guess what can I do to prove a benificial interest at this late stage please any advice welcome thanks for taking time to read this I'm so scared that my children husband and I will be made homeless I don't know what to do.

debt_doctor

Hi,

If they do not mention the deadline then make sure you don't! It wouldn't be the first time i've seen an IP run out of time.
Remember that they have to 'begin an action' during the 3 year period, so if they begin an action for an Order for sale, or perhaps a charging order then if before the 3 year period, then it can conclude after the 3 year period.
Certainly take that legal advice re beneficial interest.


DD

zbeebee

Thank you for your reply debt dr could I ask how long it takes them to sort these things out and how do they have to tell us husbands 3 years is up on Sunday so last working day is today we have heard nothing and I'm too scared to call and ask what's going on. If they have started proceedings when would we hear about it. I did seek advice and have a solicitor who will take my case if I need to go to court I just don't want to instruct him incase they are out of time( doubt it cause we are just not that lucky) but wanted to gauge timescales as all I can find is information on 3 year dead line. Thanks again for your help

coolcait

Hi zbeebee

Which part of the UK are you in? (As in England, Wales, Scotland, NI - not the exact town! )

zbeebee

Hi we are in England Staffordshire ? Does it make a difference?

coolcait

zbeebee wrote: »

Hi we are in England Staffordshire ? Does it make a difference?

Yes, there are a few things which are different in a Scottish bankruptcy, when it comes to property.

Sadly, I can't offer you any advice, as I only really know about the Scottish system.

But I can, and do, offer you very best wishes for getting things sorted out.

good luck

zbeebee

Thank you coolcait that's kind of you will keep this post updated

Mouse1812

zbeebee wrote: »

The firm dealing with my husband case are stating I have no interest in my home.

Well they would wouldn’t they. Depending on your answers to the following I might be able to suggest otherwise


When you say “we have paid off secured loan” who provided the funds to pay this off, you, your husband or both of you?

How much was the secured loan when your husband went bankrupt?

Was this the (only) home improvement loan? - were there any others over the last 11 years?


In the meantime:

If they have missed the deadline for “dealing” with the property it automatically reverts to your husband under Section 283(A) of the Insolvency Act 1986. Subsections 1 to 4 are most relevant to you. Subsection 3 gives point DD made above, the trustee only needs to have “applied” for an order for sale, possession or charge before the 3 years are up.

Application for an order for sale, possession or charge must be made by the trustee to the Court.

Under the Civil Procedure Rules: Part 23 "General Rules about Application for Court Orders" rule 23.5 states

“Where an application must be made within a specified time, it is so made if the application notice is received by the court within that time.”

Now I’ll be honest and say I don’t know enough to be sure, but I hope that gives you some hope. If the court has not “received” the application by tomorrow, then they have missed their chance.



It may be a bit late for you, but others reading this in similar position (home in bankrupt spouse’s sole name) should be aware of the possibility of registering your ‘matrimonial home rights’ with the Land Registry - ask your solicitor about doing this Under Section 30 of the Family Law Act 1996.

zbeebee

Ok long winded and full of grammer/spelling probs but on phome so sorry! so secured loan was 19000 when hubby went bankrupt it is now paid off through my bank account but hubby's wages now go into my account so they are implying that his wages have covered mortgage and loan and not us we have told them that since he went br we have split everything. Since we moved into the house and gutted it and done it up I have had 2 loans one in 2003 for 8000 which on bank statement states kitchen( how lucky to of done that and found it in the loft in box of old papers !!) The second loan was 15000 for a van for the now bust company and new central heating bathroom but none of which i can find bank bits for and my bank cant get paperwork for as was back in 2006 i have always paid council tax and electricity child care and proved this we both moved in and registered on electrol role together. And the other thing we have sent to them was a quote my hubby had written down in 2003 about cost implications of adding me to mortgage which we just never got round to doing cause he lost his job and money was tight.
The paper work they have sent at the start of the month was a notice to interested parties of s deelling house falling within section 283a rule 6.237 form 6.83 which states the last date under which I am able to serve this notice is 11 feb 2013. Does this mean the last fate they could do anything or we could do anything ? Thanks for reading and helping x

Mouse1812

zbeebee wrote: »

Since we moved into the house and gutted it and done it up

and

zbeebee wrote: »

sent to them was a quote my hubby had written down in 2003 about cost implications of adding me to mortgage

Whoa, run that by me again. Your husband bought the house when you were already together? Forget what the paperwork shows, what did you believe you were doing? Did you think you were buying the house “together”? You later got a quote to add you to the mortgage and took out home improvement loans?

I would suggest that is dynamite evidence of INTENTION that the house, your home, was to be jointly owned. The old concept of “what is mine is yours” in marriage.

Read this:
from the Citizens Advice Bureaux website

Beneficial interest

Legal ownership does not affect who is entitled to the proceeds of the sale of the home. This is governed by the principle of beneficial interest. This establishes the financial value owing to each partner if the home is sold.

If only one of the partners is the legal owner, the other (whether married, a civil partner or a cohabitant) may still be able to claim some of the financial value of the property. This is because s/he may have a beneficial interest based on contributions s/he has made to the purchase and/or the intentions of both partners when the home was bought.

If a couple are joint legal owners, this does not mean that they have equal rights to the financial value of the home. They may not have an equal beneficial interest in the property.

Certain people will only have rights because of their beneficial interest. Partners who are not married or civil partners who are not legal owners can only have the long-term right to occupy, prevent a sale or obtain any proceeds of a sale if they have a beneficial interest. This is why it is important to establish the existence of a beneficial interest.

Rights of a partner with beneficial interest

If a partner has a beneficial interest, this means s/he:-

• has the right to occupy the home. This right can be enforced on a short-term basis by applying for an occupation order
• may be able to prevent the sale or use of the home as security to raise a loan
• is entitled to a share of the proceeds of the sale of the home based on her/his beneficial interest.

How to establish the existence of beneficial interest

A written, signed declaration or a formal trust deed which indicates the partners' intentions about their financial shares will establish that a beneficial interest exists. Solicitors are supposed to arrange this when a couple buy a property. If they do not, it may be a failure of professional duty.

If there is no formal statement, the existence of beneficial interest can be established by applying to court (usually the county court).
The court will look for any evidence of a common intention, which could be an informal discussion or understanding, as long as both partners are aware of it.

If the court cannot find any common intention, the division of interest will depend on the amount each partner has contributed to the purchase and/or housing costs of the home, as long as these were not intended as a gift.

A couple can apply to court for their financial shares in the home to be valued at any time. It does not matter if one of them has already moved out of the home.


Now if they have missed the date for an application to the court it is academic, however if you do have a problem you must stand your ground and prepare your defence. I’d say you have a 50% beneficial interest in the property and the Court should find in your favour. Make sure your solicitor understands this - give him/her a copy of this thread!

That however only takes you half way, will you be able to raise the other half?

Mouse1812

Now lets get technical: from the OR's very own instruction manual

33.52 Calculating an interest in solely owned property - with agreement
Reference should be made to any agreement made at the time of the acquisition of the property to establish that a third party has a beneficial interest in the property. This agreement is binding upon the trustee (Gissing v Gissing [1971] AC 886). Any agreement to share the interest in the property without stating the specific proportions in which that interest is to be divided, will give rise to interests in equal shares in the proceeds of sale. These interests may be adjusted by later agreement of the parties, which may or may not be in writing.

33.53 Dispute over ownership – solely owned property
In the event of any dispute, the onus of proof of the existence of an agreement falls upon the person claiming that there is an agreement. Where no agreement is found to exist, reference should be made to the guidance in paragraph 33.56 to establish the beneficial interests. See also paragraph 33.49.

33.54 Verbal agreement – solely owned property
In Re Densham, ex parte trustee of the bankrupt v Densham ([1975] 3 All ER 726), the property was purchased with a one-ninth contribution from the spouse towards the deposit. The contract was in the bankrupt’s sole name due to a misunderstanding as it had been verbally agreed that the spouse would have a half share of the property. It was held that the verbal agreement was valid. Without that agreement, the spouse would only have been entitled to a one-ninth share in the property.

33.55 Inferred agreement – solely owned property
In Midland Bank plc v Cooke and another (1995 4 All ER 562) there was no agreement between the spouses as to the exact proportions of their beneficial interest. It was held that the wife had made indirect contributions to the value of the matrimonial home by bringing up the children and maintaining and improving the property. From this it could be inferred that the couple’s presumed intention was to hold the beneficial interest in the property in equal shares.

Note the cases quoted. Note any agreement between yourself and your husband is binding upon the trustee, even if it was a verbal agreement.

You (or your solicitor) will benefit from studying this, in particular Parts 2, 3 and 4.