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Thomas
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6315
Experience:  BA (Hons), PgDip, Practising Solicitor
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hello i hope you can help....my husbabnd is in prison been

Resolved Question:

hello i hope you can help....my husbabnd is in prison been there since march...he has quite alot of property which the banks etc are now after as he hasnt been able to sort things out from prison..we both are on the mortgage on our main property where myself and 2 children live. they are now trying to put a charge on this property for his debts...he also has a confiscation order of 64k which he has to find. is there a way to which i can try and stop the charge being put on our main home or if not to stop any future charges being put on it. every other property he has is in his name...i have no debts and would really like to keep my house. please help me to understand what action i could take to stop this..thankyou Elizabeth
Submitted: 1 year ago.
Category: UK Law
Expert:  Thomas replied 1 year ago.
Hi Elizabeth,

Do you know if you own your property as "joint tenants" or "tenants in common"?

Did you execute a Declaration of Trust declaring that you have defined percentage interests in the property?

Tom
Customer: replied 1 year ago.


we have a joint mortgage on the property..both our names are XXXXX XXXXX mortgage....as for the declaration of trust of interest in the property i presume being joint on the mortgage would make half the property mine..there is no equity in the property as if we sold it would only fetch the amount left on the mortgage. thanks

Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

There are two ways of holding property. 1) Joint Tenants and 2) Tenants in Common.

If you hold as Joint Tenants then your shares are taken as being indistinct from eachother, whereas with Tenants in Common each share is separate/distinct and passes according to any Will or Intestacy. With Tenants in Common you can also hold unequal shares).

I would say that you should change to tenants in common if you do not hold it as such now. You can do this by using Form SEV from the Land Registry (you will have to send it to them and if you have any questions about completing the form you should call their customer service number - they are very helpful):-
http://www1.landregistry.gov.uk/publications/?pubtype=49


You will then hold you interests as tenants in common. This means that your interests in the property would now be separate.

You can check how you hold your shares by downloading a copy of the register for the property from the Land Registry by paying a £4.00 fee:-
http://www.landregistry.gov.uk/wps/portal/Property_Search

Look at the propreitorship register of the title you have downloaded from the Land Registry (where the proprietors of the property are listed). If the following entry is immediately below the named registered proprietors then the interests are held as tenants in common:-

" No disposition by a sole propreitor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the Court"

If there is no such entry then the proprty is held as joint tenants.

If the debts which the creditors are claiming are only your husband’s debt and you were not party to the debts then they can only claim against his interest in the property. Your interest is protected, which means that if there subsequently is some equity in the proprety then your share of it would be protected.

A creditor might apply for a charging order and then, after that, an order for sale of the property. However, you would receive notice of this and the best advice I can give is to instruct a solicitor when you do. If there is no equity in the property and the property is the family home then you have a good chance of defending the application for it to be sold because no value would be realised from it.

You need documentary evidence that there is no equity in the property. So, mortgage statements and an approximate valuation of the property. If he has other properties in his sole name then you may consider informing the creditors of these if they do not know, if there is any equity in these then they are more likely to go after them than your home.

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 1 year ago.


thanks....all his other propertys have no equity apart from 1 which the cps want for the confiscation order. the charge has not been put on this property yet its in court on the 5th of feb...is there anyway i could stop this...i have been informed of this as i am on the mortgage but the debt is my husbands...could i write to the court and defend this ? also can i stop anyone else trying to put charges on this house? thanks


 


 

Expert:  Thomas replied 1 year ago.
Hi Elizabeth,

You need to instruct a solicitor to defend this for you really. You will also need to attend Court.

If you are on the title to the property then you can stop the charging order having an effect on your share of the property, but probably not on your husband's share.

Your share is ringfenced/protected, but if the debt is iegitimate then the creditor will probably be successful on placing a charging order against your husband's share (not yours).

The position is the same with all other creditors provided you are not party to the debts (eg. joint loans).

If there is no equity then they are not likely to be sucecssful in apply for possession/sale.

Please rate my answer.

Kind regards.

Tom
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6315
Experience: BA (Hons), PgDip, Practising Solicitor
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