Beneficial Interest??

titakar

i'm getting confused regarding this:

my wife owns our property, mortgage free, in her sole name for last 4 years.

my question is: if i'm deemed to have BI how is the calculation done?

is it an automatic 50% based on the fact we live together and are married?
or
is it calculated on what i have contributed to the propery, i.e paying utility bills etc.

if the second oprion if correct does it simply work out that say within the last 4 years i've paid say £5000 of bills then my BI is £5000?

or is this wishful thinking on my part

kind regards
neil

blind-as-a-bat_2

Im not an expert on property but from what i have picked up the second is the closer discription of how it is done.

Although unless you have done a lot of improvemants to the house i doubt it will amount to much in your case.

Richard_s is th best person to advise on property matters, but its way past his bed time:p so you may have to wait till morning for confirmation:D

Richard_S

Hi titakar, (is that Russian?:D )

The calculation of B.I is usually assumed to be a 50/50 split regardless of who paid what bills. If you believe that your B.I is less than 50% then the onus is on you to prove it.

33.31A Bankrupt’s interest in property - disputed


Where the bankrupt occupies a property with a partner (whether or not they are married), the official receiver may have to consider a claim from the ‘solvent’ partner that they are entitled to a (greater) share of the property. For example, disputes can arise in respect of jointly owned properties where the partner believes that they are entitled to more than 50% of the beneficial interest or, in a solely owned property, where the partner believes that they have a financial interest in the property.

Where the official receiver as trustee is dealing with a jointly owned property, he/she should also consider whether the bankrupt is entitled to more than 50% of the net equity.

The conveyance of a property into joint names may be considered conclusive evidence of an intention to hold the property in equal shares. The exceptions to this are where one of the parties can demonstrate to the court proof of fraud or mistake in the conveyance or where there exists a declaration of trust of the beneficial interests. A declaration of trust should usually be made at the time of the conveyance, but may occur on the happening of a specific event which would disturb the shares in which the property was held. There is no requirement to lodge a declaration of trust between the legal owners of the property in respect of their beneficial interests with HM Land Registry as the Register is only concerned with the legal title and not the division of the beneficial interest by the legal owner(s). The official receiver should request documentary evidence in support of any disputed claim concerning the beneficial interest in the property whether it relates to the bankrupt, or solvent partner’s share.

In the case of Re Lorraine Share [2002] BPIR 194 the bankrupt (now Mrs Fisher) was the sole owner of a property. The mortgage application form contained clear statements by Mrs Fisher that she was to pay the deposit personally and meet the installments out of her own income. In 1996 she was adjudged bankrupt but gave no indication that she was not the legal and beneficial owner of the property. A trustee was appointed following which Mr and Mrs Fisher (who were unmarried but co-habiting at the time the flat was purchased) contended that Mrs Fisher had never been anything more than a nominee for Mr Fisher, who had in fact paid the deposit and maintained all the mortgage installments.Witness statements and documentary evidence produced at trial supported this view. The court held Mr Fisher to be the sole beneficial owner of the flat but did so with specific mention that it was on the basis of evidence presented, but untested by cross-examination.



Where there is an express declaration of trust that declaration is conclusive evidence of the shares in which the joint owners hold the property, unless that declaration is set aside; Re: Pettitt v Pettitt [1970] AC 777.

When considering the respective beneficial interest of the parties the official receiver should also have regard to representations made by the parties of any intention to hold the shares in the property to reflect their contributions to the initial purchase of the property. In the absence of any specific declaration of trust the official receiver can consider that the shares are held equally but representations that this was a mistake may be successful if one party can demonstrate a significantly higher contribution to the purchase price.
In the case of Springette v Defoe [1992] 2 FCR 561 the Court of Appeal held that, in the absence of evidence to the contrary (in particular a communicated intention to hold the property in equal shares), the property was held on a resulting trust for the persons who provided the purchase money in the proportions in which they provided it.

If your wife owned the property before you met, then as a rule of thumb, your B.I would be 50% of the increse in the house's value from the period you started living together, unless she was the only wage earner, and you contributed nothing to the domestic budget.

Your best bet is to contact a solicitor specialising in insolvency or an insolvency practitioner.

Regards

Richard

Richard_S

blind-as-a-bat wrote: »

Richard_s is th best person to advise on property matters, but its way past his bed time:p so you may have to wait till morning for confirmation:D

Hi Bat,

I like to save my energy for parties.:beer: :beer:

titakar

Hi Richard

Thanks for that...i appreciate the information.

kind regards
neil

dfh4np

Does anyone know if beneficial interest applies in scotland. What the rules are for it if you become sequestrated and the property is in your partners name only.

Thanks


DFH4NP

fermi

There is some basic info here: Debtor's Guide.

Page 19 onwards I think.

There may also be some more info on the AIB's site: www.aib.gov.uk

Plus there is a forum with a good section on Debt in Scotland here.

Debt in Scotland

National Debtline and CCCS may also be able to help. They have versions of their sites tailored towards people in Scotland.

Scottish Debtline and National Debtline - Scotland

dfh4np

Thanks For Replying

deanlatham1512

can anyone help????
my partner wants me to leave after being together for five years---i invested £40,000 on an extension to our house,but because the house is in my partners name,she says i have no right to any of my £40,000-my partner has 4 children,one of which is mine
please advise if you can

tigerfeet2006

Hi Dean and welcome to MSE.

This board deals with bankruptcy, you would be better off posting on another of MSE boards. I will PM a boardguide for you and ask them to move it for you.