Joint Mortgage with brother

Cobalt77

Fink2iCe wrote: »

I spoke to a solicitor today. His view was that the fact that there's no evidence that I've contributed towards the mortgage, and have never received any rental income - are points in my favour as it demonstrates that I have no beneficial interest in the property. I hope to speak to a few more on Monday to see what others have to say.

Unfortunately, this just reinforces my earlier comment that most solicitors haven't got a ferking clue.

The fact you haven't paid towards a mortgage nor received rental income are irrelevant and do NOT mean that you have no beneficial interest in a property.

If this were true (which it isn't!), then if a husband paid the joint mortgage from his income, the wife would have no beneficial interest in the property if they got divorced and would thus end up with virtually nothing (or vice versa)

Equally, if I was a rich chap (I'm not!) and decided to give you a house for free because you were a nice person, you would NOT have paid anything towards it but you would still end up having full legal ownership (and thus beneficial interest) to the property.

I'm sure other esteemed colleagues here will add their own opinions and either back this up (or make me look like a complete plonker, lol)

TheGardener

Although I would never advocate taking posts on a public forum as legal advice (despite the very high standard on this forum - in particular Debt Doctor and others) and I would urge independent professional advice, I certainly wouldn't pay for it - there are a number of charities providing professional adviceand experience for free. Unless your solicitor is an expert who specialises in insolvency - then there is every possibility they will inadvertently mislead while charging you for the privilege.
That there is no 'proof' of a financial benefit will not suffice in the eyes of the OR that there was/will not be any future benefit. Do not underestimate the investigatory powers of the IS.
You have already been advised that it will be seen by the OR as an asset that could be realised - what you should do is concentrate on negotiating the best outcome with the OR and your brother, not try and go round the fact you have a substantial asset.

debt_doctor

Hi,


This is a very complex issue, not to mention a risky one.
The starting position in bankruptcy is that property held by joint owners is held in equal shares and that any beneficial interest will also be 50 - 50.
From April 1988, the Land Registry provided a box on form TR1 which described how the interests in the property were to be held. This declaration is considered to be conclusive unless a party can demonstrate that a mistake was made or that a fraud was committed.
So my thoughts are;
The first thoughts of the OR will be 50 -50 beneficial interest and will start to pursue it as such.
Upon objection, the intentions on the TR1 would be looked at. It is very important to see what is indicated here - if nothing then the principle of 50 - 50 would tend to stand.
If the TR1 does not support you then you would have to demonstrate that a mistake was made - this could be difficult.


If it has been or can become established that the property is held in unequal shares then who has contributed to what does indeed matter in deciding beneficial interest. I note the comparison earlier with regards to how a property in 'family law' would be treated but insolvency law doesn't treat a property in such a way.
This would then be;
Who paid what deposits
Who paid what to the mortgage
who took what in rent
who are mentioned as landlords
who pays to maintain the property.


An OR normally has up to 3 years to deal with a property, but not with this property as it is not a 'family home'
The OR would become entitled to some or all of the rent, and may well take on the responsibilities of the landlord.
OR's hate such responsibility and try to dispose of the property as soon as the tenancy can be lawfully ended.
The OR (or far more likely the appointed IP) absolutely has a right to sell the property to gain any monies considered owing from the bankrupt.


My immediate advice is look at how the property is held on the TR1 NOW, before you are bankrupt, and try to assess the size of any battle you are to have.
If you find no comment on how the property is held then you will undoubtedly need the assistance of a solicitor who is an expert in Insolvency Law, and even then you need to understand that the property is at significant risk.
DD

debt_doctor

I would also be considering what intentions / instructions were given to your solicitors about the intentions on how the property would be held.
This would be contained in the 'Client Care Letter' they should have provided to you at the time.
If you haven't got that letter then you can ask for a copy - possibly at a small charge.
If nothing is said about intentions then that would be down to you for not reading in sufficient detail, but if it shows what your intentions were, and your solicitor did not register them as such, then there is a potential claim against the solicitor.
DD