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  • FIRST POST
    • Jameslm
    • By Jameslm 11th Mar 18, 8:25 AM
    • 2Posts
    • 0Thanks
    Jameslm
    Post separation mortgage
    • #1
    • 11th Mar 18, 8:25 AM
    Post separation mortgage 11th Mar 18 at 8:25 AM
    Hi. Thanks for reading apologies that this may get long.

    Background:
    My ex partner and I weren’t married. We have two young children. Brought a house in 2013 using the help to buy scheme. After having the house for just 2.5 yrs we split. I wanted to sell the house but my ex refused. I did not fight her through court due to solicitors advice telling me I have zero chance to win. Eventually it was agreed through solicitors that I would move out of the house leaving her and the two children to live there. She would take over entirety of the bills and mortgage and I pay her child maintenance. The house would not be sold Until one of the following happened: 1) ex partner dies, 2) ex partner decides to sell the house, 3) youngest child turns 18 (in approx 16 years time)
    I was not particularly happy with this outcome due to not being able to get another property for myself, but at the time saw I had no option but to go along with it.
    As part of this agreement we went from
    Joint tenants to tenants in common with a 50% share each.

    My question being:
    1) if my ex does continue to pay the mortgage for 16 years and then sells the house, will I still be entitled to 50% of the equity?
    2) if I am released from the mortgage by my ex and the bank, but not brought out, am i then able to get a mortgage of my own?
    3) my ex has a new partner, at what point can I argue that I can be released from the mortgage due to the new partner potentially being the new guarantor?

    Sorry this is long, thanks

    J
Page 1
    • Tom99
    • By Tom99 11th Mar 18, 10:55 AM
    • 2,260 Posts
    • 1,529 Thanks
    Tom99
    • #2
    • 11th Mar 18, 10:55 AM
    • #2
    • 11th Mar 18, 10:55 AM
    How is the 50% share evidenced, is there a separate deed of trust and, if so, exactly what does it say.

    Or do you just hold the property as tenants in common with no stated percentages but just the general assumption that it is held 50/50.

    You can't be released from the mortgage whilst remaining an owner since the property will still be charged to the mortgage co.

    You will also have to pay 3% extra stamp duty if you buy whilst still owning a part of the previous house.
    • Thrugelmir
    • By Thrugelmir 11th Mar 18, 2:48 PM
    • 58,961 Posts
    • 52,279 Thanks
    Thrugelmir
    • #3
    • 11th Mar 18, 2:48 PM
    • #3
    • 11th Mar 18, 2:48 PM
    Joint tenants to tenants in common with a 50% share each.
    Originally posted by Jameslm
    As tenants in common you both have distinct 50% shares of the property. You can leave (in your will) or gift your share to whoever you wish. Your ex cannot sell or remortgage the property without your permission.

    Few lenders will agree to all owners not being named on the mortgage.

    You ideally need your ex to buy you out of your share of the property. Or wish to move themselves. No doubt it is on their minds that they only own 50% of the property. As the years tick by it's something that will need to be addressed.
    Financial disasters happen when the last person who can remember what went wrong last time has left the building.
    • Jameslm
    • By Jameslm 11th Mar 18, 3:24 PM
    • 2 Posts
    • 0 Thanks
    Jameslm
    • #4
    • 11th Mar 18, 3:24 PM
    • #4
    • 11th Mar 18, 3:24 PM
    Thanks for the reply Tom99

    A land registry form SEV was sent off. Reading it there are no percentages outlined.

    There has been a deed of separation made. Which outlines that we both had 50% entitlement to the beneficial interest in the family home.
    Then goes on to say:
    With effect for the date of this agreement the family Home shall be held by me and the ex upon a trust of land for themselves as beneficial tenants in common in equal shares upon the following terms: (ill summarise)
    1. I leave house and ex and children live there
    2. Ex will be responsible for mortgage payments
    3. Ex responsible for the interest payment of the help to buy loan
    4. Ex responsible for maintenance and decoration costs to Home.
    5. Ex responsible for insurance.
    6. Structural repairs are joint costs.
    7. Ex has right to purchase my interest in Home.

    The deed then continues to the conditions of the sale of the house. As mentioned in my first post.

    I was under the impression that if the mortgage company agreed the ex could afford the mortgage solely, but not afford to buy me out, I would stay on the deeds of the house but come off the mortgage. Is this not correct. And of course my share of the house equity freeze at the point my name comes off the mortgage?

    Thanks
    J
    • Tom99
    • By Tom99 11th Mar 18, 3:53 PM
    • 2,260 Posts
    • 1,529 Thanks
    Tom99
    • #5
    • 11th Mar 18, 3:53 PM
    • #5
    • 11th Mar 18, 3:53 PM
    I presume the mortgage is a repayment one and the problem is you deed of separation does not reflect the fact that your ex will have paid off this mortgage by the time you get your 50% beneficial interest on the sale of the property.

    I think interpreted as written you are entitled to 50% of what's left after sale costs and redeeming whatever mortgage is left but your ex will have a strong argument that they paid off the mortgage and are at least entitled to get that back. How they would take that argument forward I am not sure, probably 1st by negotiation with you.

    I don't think you can come off the mortgage whilst you are still an owner, after all it is your house which is being mortgage not just half a house.

    You could put forward the argument to your ex now that if they let thing drift you will get 50% of a mortgage they have paid for and therefore it is in their own interest to buy you out now whilst there is still a joint mortgage outstanding and they have another partner to step in and take your place as joint owner.
    Last edited by Tom99; 11-03-2018 at 4:00 PM.
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