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Thomas
Thomas, Lawyer
Category: UK Property Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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My fiancee moved out over a year ago and until a couple of

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My fiancee moved out over a year ago and until a couple of months ago she continued to make the payments on our joint mortgage. I have been in contact with a solicitor who has advised me that she is entitled to half the value of the property when sold, and also that she is not obliged to continue with the mortgage payments.
I would like to re-mortgage the property under my name and two other parties.
Will this automatically remove her from the title deed on the property and therefore remove her claim to half of the value, and if so, is it legal to do this without consulting her?
Submitted: 3 years ago.
Category: UK Property Law
Expert:  Thomas replied 3 years ago.

She is named as joint owner on the registered title at the Land Registry, correct?


Tom

Customer: replied 3 years ago.
Yes
Expert:  Thomas replied 3 years ago.

Hi,

 

Thanks for your reply.

 

If she is jointly named on the title to the property then you cannot transfer the title and remortgage without either her consent or an order from Court stating that the title should be transferred.

 

If she has maintained her share of the mortgage payments until a couple of months ago and there is no deed (eg, declaration of trust) confirming that you hold your shares of the equity in specific percentages then there is a presumption that each party holds a 50:50 share and the onus and burden to prove that this is not the case would be on the party claiming more than 50%. Not paying the mortgage from recently would not do it unfortunately.

 

If you wish to remortgage (you will obviously need to demonstrate sufficient income to a lender to receive a mortgage offer) and transfer the title in the property then she will need to sign the Land Registry Transfer form and contract. If she does not consent to the transfer you will have to apply to Court for an Order for sale.

 

Unless she is desperate to be removed then she will likely ask that she be paid for her share of the equity. You are going to have to contact her to check initially if she is willing to agree to the transfer, if she refuses then you will have to see a property litigation solicitor to write to her and make sure she knows that you can apply for an Order. I would expect negotiations as to her share of the equity to start here.

 

Litigating can be expensive and unless one party is being totally unreasonable and/or there is a lot of equity in the property it is generally better to settle.

 

Sorry, I'm sure this is not the answer you wished to here.

 

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.

Kind regards,


Tom

Customer: replied 3 years ago.

Is the land registry form No. TR1, and can it be completed without a solicitor?

Expert:  Thomas replied 3 years ago.

A TR1 need not be completed by a solicitor, but it will be necessary in your case because you will be remortgaging and the lender will require that a solicitor will act on their behalf as well as yours to ensure that their charge is perfected. The Solicitor acting would therefore prepare the TR1 form.

 

Trust this clarifies, if so please click accept. I will continue to answer your follow up questions.


Kind regards,

 

Tom

Thomas, Lawyer
Category: UK Property Law
Satisfied Customers: 6260
Experience: BA (Hons), PgDip, Practising Solicitor
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