Tenants in Common - Partner won't move out but slow to buy/Apply for Order of Sale?

patienceisavirtue

Hoping someone can help with advice.

My ex-partner and I are Tenants in Common on a flat we jointly own (50/50), worth approx. £280k with a £220k mortgage.

We split and I moved out in September 2009 (four years ago). He lives at the property and is paying a low mortgage payment (£450/month) on an interest only mortgage of £220k.

To avoid the penalties to get out of a fixed rate mortgage we agreed to wait until 1st Sep 2012 to move on releasing my half of capital (approx. £30k).

He said he wanted to buy the flat - had the means to borrow and the deposit - tried to obtain a mortgage but was refused because fraud had affected his credit rating. He spent months (apparently) trying to have this rectified - but didn't actually seem to be achieving much.

So we put the flat on the market Nov 2012, he agreed he would move out, sale was agreed with a buyer in a matter of weeks (and over Christmas so the flat isn't too hard to sell), the solicitors did their stuff - but he refused to sign and refused to move out (this was in April 2013) saying he wanted to buy it. The buyer was understandably distraught, left out of pocket for survey and solicitor's fees, the estate agent was apoplectic, and I was exasperated.

We jointly received a bill of £800+ from the solicitor - which I insisted he pay as he had obstructed the sale. He paid it.

He was again refused a mortgage - apparently due to some more fraudulent activity - this time embedded deep in MY credit file (we were financially associated as have joint mortgage - at first glance my Experian was Excellent - when I called up they found some 2 bogus uses of my details), I set about sorting this out and they were finally gone from my record 5 weeks ago.

I also made sure we were financially disassociated and asked him to proceed with his mortgage application asap.

5 weeks later and we're no further forward - he says he's now waiting for news back from Halifax underwriter. (Having been refused a mortgage it had to go to the underwriter.)

He's still only paying £450/month (on a flat with a rental value of around £1400/month) - I still don't have my capital - and I'm still on the mortgage.

My questions are:

1. How long does it take for an underwriter (at Halifax or elsewhere) to come back with a decision. I'd like to know is he stalling me (again)?

2. How difficult, expensive and time consuming is it to apply for an Order for Sale under the Property Act?

3. Could I apply for an Order of Sale without engaging a solicitor? (I run my own small company - so reasonably able (I hope?!))

4. I know he has in the past year or so received medication (anti-psychotic drugs) and counselling (I believe he's still employed - he had been signed off for a while - not sure if he's back or not) Could this become an issue to a court when issuing an Order of Sale?

5. If I applied for an Order of Sale - and won - who would pay the legal costs?

6. Could I apply for the difference between mortgage paid and rental value - that I'm effectively losing on the property while he lives there?

7. Lastly, I spoke to a solicitor today who suggested I could sign over the property to my ex with a Deed of Trust - register him with Land Registry as sole owner - in return for my capital - and then he could in due course get a new mortgage, repay the existing removing me from the mortgage. My instinct is this is a bad idea in the long run. If he doesn't obtain a mortgage for any reason (one being he's repayments are super cheap on the interest only and he'd have to go on a repayment) - I'm left stuck on that one (problematic when I want a new mortgage) - and as it's an interest only - in 15 years I'd probably be left to repay half the loan - which would be about £110k. Anyone any thoughts on this one?


Thanks for your help people.

TBagpuss

Applying for an order for sale won't be cheap,but if you are successful you may be able to reclaim at least some of those costs.

You don't have to have a solicitor, but I would strongly recommend that you do - or at the very least get your application and statement checked before you issue it.

You can ask him for an 'occupation rent' - that he pay you 50% of the open market rent, for his use of your 'half' of the property (less 40% of the mortgage) but it is unlikely to be backdated beyond when you first ask for it.

I agree that there's no advantage to you being off the property and not off the mortgage, nor can I see how he could pay you your capital if he can't get a mortgage and sin't working = presumably he doesn't have £30,000 available.

patienceisavirtue

Thanks TBagpuss - I'll take your advice - the hunt for a good solicitor/litigator begins. (I'm in the Hove/Brighton area if anyone can recommend.)

I'll be checking with the solicitor if they've done exactly this kind of thing (applying for an order of sale) before. (Have heard of solicitors taking on cases with little or no prior experience in the relevant area.)

Great about the occupation rent and possibility of recovering some costs - will be mentioning to him - if only to pile on the (financial) pressure to do something.

I know he actually has quite a bit of cash - does have the the £30k - he's sent me his bank statements - but I'd lose all leverage by signing over the flat to him - and I just know he'll leave it on an interest only mortgage - just storing up trouble for me in 15 years.