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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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8 years ago my mother gifted me 110,000 to buy land so I

Customer Question

Hi, 8 years ago my mother gifted me 110,000 to buy land so I could build a house. She mortgaged her own home to do this. Needless to say the relationship has become estranged and she is now trying to force me to sell my house and pay out the mortgage. I have a stat dec that states the money was a gift, but it is not that simple, as being so grateful at the time and her getting in less money than me, I have been paying the mortgage on her property since the beginning. Where do I stand?
Submitted: 11 months ago.
Category: Australia Law
Expert:  Leon replied 11 months ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

If you have been paying the mortgage then it was not a gift. She borrowed the money for you and you are paying it off.

Having said that, if you have not missed a payment and the mortgage is being paid correctly she cannot deman you pay it in full as the agreement was you can pay it off and you are complying. Because she hates the idea because of the fall out does not mean she can force you to pay it all off in one lump sum.

The Stat dec is in your favour and I suspect it is in place just in case something happens to her and the balance of the loan does not have to be paid off it form part of your inheritance.

You are in a good position and if you have not defaulted on the repayments and are complying with the agreement you do not have to repay it immediately.

I hope this makes sense?

Customer: replied 11 months ago.
Thank you for your response. What happens if I do decide to sell my home do I have to pay the mortgage on her property out then, or can I just keep making the repayments?
Expert:  Leon replied 11 months ago.

Good Afternoon

If the agreement is that you pay it off then yes you have an obligation to do so. If you dont then your mother would possibly sue you to get the money.

It all depends on what the agreement between you is.

It would be assumed that if you sell your home that you would pay out the loan as it was taken out for you to buy the house.

Customer: replied 11 months ago.
She is saying that we agreed to pay it off in five years but that is simply not true and as we have a mortgage of our own we cannot pay hers out as well when we sell. Is there nothing we can do?
Expert:  Leon replied 11 months ago.

Good Afternoon

It is your word against hers about that, but the Stat Dec being silent about this favours you.

You deny the allegation and rely on the stat dec.

It is your word against hers.

You would assume that if she was preparing a Stat Dec that she would not have missed an important point such as it being for a 5 year period only

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