Previous minute of agreement and mortgage

Flix21

FTB property bought in 2014 with long term boyfriend (Scotland).

Boyfriend put down a much more substantial deposit than me, so when buying we drafted a minute of agreement with the Solicitor to ensure each would get back what deposit they put in then any equity would be split 50/50.

Fast forward to now - i've come into some inheritance and could pay off the mortgage. However, currently stuck in a fixed term, so my plan is to pay off the 10% this year and another over-payment next year which would mean i've input the same amount of cash as the boyfriend and we're then even.

We searched for a copy of the minute of agreement provided by the Solicitor at the time. This Solicitors went bust about 2 years ago, and I have a strong feeling they never registered the minute of agreement with the Books of Council and Session. I have contacted them to request a search for it to clarify, but with it being the holidays it might be a few days before we hear back.

So I guess there could be two possibilities:

A - The minute of agreement was never properly registered and therefore is invalid. I can use over-payments to even us up and no minute of agreement needed as both own the property 50/50.
B - Previous minute of agreement does exist. Retract it or create a new one so money I use for over-payments is noted.

Ultimately - in 3 years time when the fixed term is up, if I do then pay off the mortgage in full a new minute of agreement will need to be created to protect my investment. Boyfriend if fully supportive of this.

Does all this sound about right?
Obviously will speak with a Solicitor, but just wanted to make sure I've got my head around the basics.

Flix21

Yup - in Scotland.

davidmcn

Flix21 wrote: »

A - The minute of agreement was never properly registered and therefore is invalid

What makes you think that it needs to be registered to be valid? The Books of Council and Session is basically just a place to archive deeds, not something which suddenly makes them valid.

Flix21

davidmcn wrote: »

What makes you think that it needs to be registered to be valid? The Books of Council and Session is basically just a place to archive deeds, not something which suddenly makes them valid.

"A Minute of Agreement can only be enforced in Scotland after it has been registered for preservation and execution in the Books of Council and Session. Registration is governed by Chapter 62 of the rules of the Court of Session[1] and the original document is preserved by the Keeper of the Registers of Scotland, a function of the National Records of Scotland.[2] A party can enforce any provisions contained in a Minute of Agreement by applying to the Keeper for an extracted copy of the original (an 'extract'). Enforcement against another party who resides or has assets in Scotland is carried out by a Messenger-at-Arms, who is an officer of the Court of Session (the supreme civil court in Scotland)."

__________


"What is a minute of agreement?


A minute of agreement is a written document created by two or more people that sets out the terms the parties have agreed to. Once the document is registered, the provisions can be relied on in Scottish courts if any disputes arise in the future. They can also be registered in other parts of the UK and Europe, giving them the same legal effect there. You don’t have to go to court to create a minute of agreement; your solicitor can assist with drafting and witnessing the document.


Is a minute of agreement legally binding?


Provided the document is registered in the Books of Council and Session, a minute of agreement will be legally binding. A lawyer can help you with the registration process."


Just from the research i've done online. Granted, not actually spoken to a Solicitor for confirmation. The Solicitor we used at the time never mentioned the Books of Council and Session. She just drew one up, we both signed it and then she gave it back to us and said she would keep a copy in her office. That office is now gone seeing as it went bust.

davidmcn

It's still legally binding, just means you'd have an additional bit of court procedure to go through to prove that the agreement existed, whereas with an already-registered deed you can go straight to enforcement.

Anyway, it's the principal deed which would have had to have been sent to the registers, so if there was only one of those and you had it (and have now lost it?) then it's definitely not registered.

MovingForwards

As the firm when bust, some other firm will have taken on their clients and work.

I suggest you contact the Scottish law society to see who holds your file, they are kept for a minimum of 6 years.

Flix21

Thanks for the clarification!

We still have the original signed copy however a page is missing. Looked everywhere but can’t find it. The signed part is still there. My boyfriend had an electric copy in his email that the solicitor sent.

I guess this means we just rip it up altogether and deleted the email and we’re sorted?

Or do you think creating a new one to protect my overpayments and make it clear it’s now 50/50 would be best?