Get UK Law Questions Answered by Verified Experts
Hi Dr Mosley,
If there is a mortgage on the property then the lender has a first legal charge which prevents the transfer of the property without their consent. This means that you should approach the lender about receiving a mortgage in your sole name (your quesiton reads "...can afford to take on the mortgage".
Once you have a mortgage offer you can arrange the transfer in to your sole name.
If you do not have enough money to pay him his share now then upon transfer to your name you coudl execute a declaration of trust stating that although you are the owner of the property he has an interest to the value of £15, 000.00 in the equity in the property. Alternatively he would take a second legal charge against the property in the same sum.
At the same time you could execute a separation agreement (with a solicitor in the same firm) stating what is happening above and that you plan to repay him. The charge or declaration would also contain provision regarding repayments of the amounts owed and that upon full repayment he will consent to the declaration or charge being redeemed (ie. repaid).
I'm not sure what he was advised.
If this is useful please kindly click accept so that I may be rewarded for my time. You will be free to ask follow up questions.
His main concern is either
1. What if i decide not to repay him (even though i can afford it)
2. If my circumstances change and can not afford to do so immediately
Does the "The charge or declaration" protect him against loosing his equity in the property
The declaration of trust/charge would govern his right to enforce the non-repayment of monies owed.
In view of his concerns, a second charge would seem more appropriate in that it can be registered against the title to the property so that any potential conveyancer would know of the charge and repay the sum following complettion.
If you cannot afford to repay the monies under the charge then he could apply for an order for sale. The charge may state under what circumstances (ie. how many missed payments) he can make such an application. If there is insufficient equity in the property to repay him upon sale then he can obtain judgement agianst you for the debt in a county court.
This is a bit of a disadvantage to him in that it is better to have money in hand than a county court judgement but if you are to have the property in your sole name but cannot repay him this is all you can offer.
Trust this clarfies, if so please click accept.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).