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Thomas
Thomas, Lawyer
Category: UK Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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Hi, I bought a house with my ex partner, it was £68,000. My

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Hi, I bought a house with my ex partner, it was £68,000. My father who was the seller gifted me £8000 for a deposit and we therefore purchased for £60,000. This £8000 was a gift solely to me. We entered the contract (i.e. the mortgage) AFTER this was given to me. We have since seperated and sold the house, the proceeds have been split 50/50 apart from the £8,000 as he claims half of that is his too. His claim is on the basis that his assumption was that this was a joint gift, my father has written to his solicitors stating that it was a gift for me alone and not for him as he had only known him for a few months. Basically, as I put this money in myself, should this full amount come back to me or should it be split 50/50 with the rest of the equity?

Thank you
Submitted: 2 years ago.
Category: UK Law
Expert:  Thomas replied 2 years ago.
Hi
Thanks for your question.
To enable me to answer your question could you please respond to the following using the same numbering:-
1. Do you have any documentary evidence from the time confirming that it was a gift to you only and not a joint gift
2. Where did your father transfer the money to – your solely named bank account, or elsewhere
3. Did you execute a declaration of trust declaring percentage interests in the property or perhaps that you should receive £8k more than your partner to take account of this?

Kind regards.
Tom
Customer: replied 2 years ago.

1. Do you have any documentary evidence from the time confirming that it was a gift to you only and not a joint gift


No I do not, the mortgage offer simply stated 'a gift of £8000 is being provided by Mr Jones towards the purchase of the property' The conveyencer is to confirm that there are no insolvency implications'.


 


2. Where did your father transfer the money to – your solely named bank account, or elsewhere


The money was simply deducted from the £68,000 asking price, it seemed pointless for him to give me £8,000 cash only for me to give it straight back. The mortgage was for £60,000.


 


3. Did you execute a declaration of trust declaring percentage interests in the property or perhaps that you should receive £8k more than your partner to take account of this?


 


No declaration of trust was issued, I have since been told that my solicitors should have done this for me, they did not.


 


 

Expert:  Thomas replied 2 years ago.
Hi,

Thanks for your reply.

It’s not a great position to be in really.

In the absence of any express agreement (ie. declaration of trust) there is presumption that the proceeds of sale are split equally, however if either party contributed more the financing of the purchase or has maintained the majority of the mortgage then this may be taken in to account and they can argue that they should receive more of the proceeds of sale. The difficulty is that if the other party does not agree then you may be forced to litigate (which can be expensive).

If the solicitor was required to ensure that the gift was unrelated to insolvency proceedings then they may have something in correspondence from your father which – in passing – refers to the gift as a gift to you. I would get in contact with them and ask them to retrieve their file. Use the fact that you were no advised with regard to a declaration of trust as leverage to get them to act quickly.

If there is no such evidence then it’s basically your father’s statement against the presumption/your partner’s statement.

You should posture that you will litigate on the matter if she does not agree and then take an consultation with a solicitor after gathering what evidence you can on how much it would cost to litigate versus your prospects of success based on the evidence. In the absence of any proof from around the time it may be worth offering a substantially reduced amount in consideration of settlement of her claim.

You may consider complaining to your original solicitors about not being advised of your option to get a declaration of trust or clarifying the nature of the gift. You may be able to squeeze some money out of them depending on how it goes to part-fund a settlement figure.


Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future Hi,

Thanks for your reply.

It’s not a great position to be in really.

In the absence of any express agreement (ie. declaration of trust) there is presumption that the proceeds of sale are split equally, however if either party contributed more the financing of the purchase or has maintained the majority of the mortgage then this may be taken in to account and they can argue that they should receive more of the proceeds of sale. The difficulty is that if the other party does not agree then you may be forced to litigate (which can be expensive).

If the solicitor was required to ensure that the gift was unrelated to insolvency proceedings then they may have something in correspondence from your father which – in passing – refers to the gift as a gift to you. I would get in contact with them and ask them to retrieve their file. Use the fact that you were no advised with regard to a declaration of trust as leverage to get them to act quickly.

If there is no such evidence then it’s basically your father’s statement against the presumption/your partner’s statement.

You should posture that you will litigate on the matter if she does not agree and then take an consultation with a solicitor after gathering what evidence you can on how much it would cost to litigate versus your prospects of success based on the evidence. In the absence of any proof from around the time it may be worth offering a substantially reduced amount in consideration of settlement of her claim.

You may consider complaining to your original solicitors about not being advised of your option to get a declaration of trust or clarifying the nature of the gift. You may be able to squeeze some money out of them depending on how it goes to part-fund a settlement figure.


Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Customer: replied 2 years ago.

Thank you for the answer. The original solicitors who handled the purchase are no longer in business, is there a way of finding out for sure if there was a declaration of trust as I do not have one and I don't remember them showing me one. My solicitor who dealt with the recent sale of the house advised that they indeed should have provided me with this declaration of trust, and has stated we could claim compensation through the law society if we cannot recover this deposit, would you agree? If so, would we make a claim now or wait until the deposit issue has been resolved in the other parties favour?


 


One final question, as I effectively gave £8,000 more than my ex partner towards the mortgage throughout its term, is this not reason enough to have the equity offset in my favour?

Expert:  Thomas replied 2 years ago.
Hi,

You would know if you executed a declaration of trust. You would have had to agree the form of draft and then sign it with witnessess.

I would agree that you have a claim against your original solicitors if they did not confirm who the gift was to and advise you of your option to arrange a declaration of trust.

It's reason enough to litigate on but it's not a legal requirement to simply hand the money to you now. First you have to prove that it was a gift only to you and then you have to disprove the presumption on that basis. If she's not agreeing then your only option is litigate because it won't be released to you otherwise.

Please remember to rate my answer.

Kind regards,

Tom
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6391
Experience: BA (Hons), PgDip, Practising Solicitor
Thomas and 3 other UK Law Specialists are ready to help you
Customer: replied 2 years ago.

Thanks again.


 


Would it be worth trying to recover the money through small claims or financial order? If so which one would be more applicable?


 


Thanks for your help I'll will rate your answers shortly.


 


Have a nice day.

Expert:  Thomas replied 2 years ago.
Hi,

You would be litigating through the small claims court, that is what I am talking about.

Tom

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