UK Property Law
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If she is still named on the mortgage and registered title to the property then, in the absence of a court order to the contrary either as a result of divorce or other civil/criminal proceedings, then you each of you have a right of occupation to the property than neither can deny the other.
She is free to move back in, or not, as she wishes.
The reality is that if you do not hear from her conveyancer shortly with respect to dealing with the transfer or equity and remortgage in to your wife's name then you can make her aware that you are able to apply to Court to force the order for sale. This should prompt her compliance and you may consider asking a solicitor to draft a tersely worded letter to her setting out your rights if you do not here from her soon as to whether she has received a mortgage offer in her sole name (which she would need to transfer in to her sole name obviously.
My answer assumes that there are no children of the marriage.
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Please advise further;
The house was about to be sold to another buyer, completion next week, but is has fallen through. The house is empty, I live with a new partner but have been paying the mortgage.
I just want rid of my ex and the house. We bought it together 3.5 years ago putting £20k each in. There is minimal/no equity in it.
My ex wife currently rents a property, and she suggested that she would give notice on her rented house on monday 25th October 2010, to move into the marital home on Nove 20th 2010.
She reported that she spoke with the mortgage company - which I confirmed with them and the application is with the underwriters. I dont know how she will afford the mortgage on her salary, but suspect she is getting help from someone.
My concern is that she moves in on Nov 20th, with no mortgage transfer completed; she then digs her heels in and refuses to pay the mortgage, for which I will have to pay to avoid repossession, and could be stuck like this for years.
I am very keen to let her move in IF she can sort the mortgage.
However, she is demanding that I email her and her lawyer on/before Monday 25th Oct 2010 to say I will let her move back in etc, as she says she will be giving notice on her rented house that day.
I'm afraid that it is not your choice whether she moves in or not - she is jointly named on the registered title and therefore has a right to move in. I know that this is unpalatable after you have paid the mortgage but I'm afraid that's the legal position.
You should appeal to her sense of pragmatism in respect of both seeing that the mortgage repayments are met - the mortgage is joint and several liability so they can take action against either or both of you. Were they to apply for possession proceedings and be successful then it would show against your credit history and make it very difficult to get a mortgage in the future. This would be good for no-one.
If she moves back in and does not pay the mortgage then you can force the sale. If you have not found any buyers then you would have to consider dropping the price.
Thank you for your kinds accept.
She is pushing for an email to her and her solicitor by Monday to state that I will move out, allowing her to move in.
Can you advise if I should do this (she indicates that she will not give notice on her rented house if I dont email), and if so, how should it be worded?
Remember, if there is a possibility that she could take the mortgage on, I am keen to release myself from this and walk away.
You can move out and let them know that you shall do so but on the understanding that your right to occupy the house in the future is not prejudiced by doing so.
No complicated language required. Just as above really.
Better to keep her onside than to anger her in to dragging her heels over arranging the remortgage.
If you have genuine doubts she is doing this, then you can refuse to move out until such time as you have been furnished with the mortgaage offer and have signed the transfer forms in respect of the transfer of the Land Registry Legal title to the property.
I've got to go out in 10 mins, I will be able to reply further (if necessary) in a couple of hours.
Thanks so far. Im really nervous about this now. If I agree to let her move in, it is likely that the mortgage may not be sorted (if she gets it) by the moving in date (20th Nov 2010). What is my position if she is occupying the house; she doesnt get the mortgage, then pleads poverty and doesnt pay the mortgage (which is my main fear)? She is sitting pretty in the house whilst I pay the mortgage or get repossessed?
At least if I dont let her move in I could live in the house, rent a room or 2 out, pay the mortgage and get by until the house can be sold.
Once she receives a mortgage offer the transfer of equity and remortgage can be actioned fairly quickly from a legal perspective.
If she doesn't get the new mortgage offer, moves in a stops paying the mortgage you are both named on then it's as above really. You can either offer to buy her out, agree with her to sell the property (ie. by marketing at a lower price) or by applying for an order for sale from the Court. If it gets repossessed then you are in the same boat, it will both be noted on your credit history.
The point is that you cannot refuse to let her move in regardless of who has paid the mortgage - she is jointly named on the registered title and in the absence of a court order to the contrary has a right to move back in. If you refuse then she will simply make an application to Court. The reason that you have received a letter from her solicitors is probably because she wants to avoid the stress of a dispute if you were minded to actually dispute it.
Hope this clarifies.
I think you are confusing this case; I have had no letter from her solicitors. I have not refused to let her move in. I understand that she could occupy the house.
As we cannot sell the property she merely suggested that she move in and take the mortgage on. She has reportedly applied through the mortgage company, but wishes for me to send an email to her and her solicitor on monday stating that I will move out of the house and allow her in (with or without said mortgage solely in her name) by Nov 20th 2010.
If I email her lawyers based on what you said earlier, how legally binding would it be, ie, if I say I will move out to let her move in, must I comply, or can I change my mind later if it looks like she wont get the mortgage?
Sorry, I think I confused your reference to emailing her/her solicitor back.
You would still be able to change your mind (about your moving back in) at a later date because you are jointly named. Make it clear in the letter that you are prepared to move out (if you are) in anticipation that her transfer and remortgage will be effected in the very near future and that you reserve all your rights in respect of the property in the event that this does not occur (including either moving back in to the property or applying for an order for sale at a lower price).
Whether she is in occupation of the property or not you cannot force her to complete a transfer of equity/remortgage if she is not willing to. Your right to apply to court for an order for sale (ie. at a lower price) still remains. Posturing to make such an application (if the transfer does not occur quickly) may result in prompting her compliance
She would be entitled to make representations to that effect, but she would have to show that she could not be accommodated somewhere else either by renting (with or without assistance of housing support) in order for this to sway the Court.
The Courts are not keen on people remaining on registered titles to the properties where they do not wish to and would likely only suspend the order for sale in view of the child so that she can find alternative accommodation.
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