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Stuart J
Stuart J, Solicitor
Category: UK Property Law
Satisfied Customers: 22513
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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Hi, im a tenant in common with my brother on a UK property.

Resolved Question:

Hi, i’m a tenant in common with my brother on a UK property. A number of years ago my parents were in financial difficulties and I stepped into save the family home with my elder brother. I did not live in the property, I worked away. My elder brother lives in the property and has moved his wife in and recently had a child.

Prior to my brothers marriage I wanted to buy my own place, but I discovered I was unable to get finance due to the mortgage I had with him. He is disinterested in my aspirations and won’t listen to me and seems very content building a life in the property. All attempts to talk and seek a solution with him have failed and I have since been forced to rent and my life has been put on hold...

I have learnt that when we got the property we were not advised to have a trust deed drawn up so there is no agreement for him or I to honour. In view of my situation and our aging parents I suggested this be done for the future, but he chooses not to cooperate and is unwilling to discuss what to do with the property... My concern is both him and his wife now do what they like, treating the property as their own without ever consulting me and I don’t see it getting any better... For instance there were some spare funds left over from the mortgage for home improvements and he banked all the monies in his account and refused to give me half so I could contribute equally and have an equal say in the work. I also specifically requested that I be consulted over improvements to the property but he ignored my wishes and upgraded the bathroom and kitchen to suit his wife’s and his tastes/needs. Neither would he inform me of the improvement costs or provide records on how the money was spent. I am very disappointed because there were some structural recommendations made by the surveyor when we got the property, but he has disregarded this in favour of meeting more superficial cosmetic improvements and he claims he no longer has the funds to do the important repairs. Incidently he made this claim shortly after getting married and I believe thats where the rest of the repair funds went because we had a surveyor estimate all the work needed and there should be plently left over after the new kitchen and bathroom.

To complicate matters the situation helped me decide to take a job overseas and my mother who lives in the property pays my share of the mortgage direct to my brother. Recently somebody said this may add to my problem because by brother could argue he has had to pay the whole mortgage and try to claim more than his share. Is this possible? The fact he has forced me into the rental market for 5 yrs, still ignores me and won’t even listen when I’m thinking of returning to the UK is very distressing. I am approaching 40 years of age and would like to have a mortgage/property in my own name before I face further difficulties in obtaining a mortgage due to age. I need to get out of this situation so I can move forward with my life.

I’m looking to return to the UK in the near future and I would like to get my own place. I am happy to sell up, or let him buy my share but I don’t believe he will do it willingly as he seems content taking advantage of the situation. I no longer wish to be controlled by his choices. My parents are aware of the situation and have indicated they would like to move in with me if I can establish my own place when I get back. Can I push a sale through and part ways from him and his new family despite the fact he is very reluctant? I would rather get this over with soon, so he too can resettle before my new nephew reaches school age. Knowing my brothers unwillingness to reach an amicable agreement between ourselves I am very concerned this could be a protracted case. Does the law limit the duration of such cases and how long is it likely to take? In addition would I be able to take action from abroad or must I be present in the UK?

I really don’t know what to do next and I would really appreciate any additional advice and recommendations on how to go about this and an indication on the outcome and possible costs involved should I need to proceed with legal action. I look forward to your reply.

Kind regards

Kimmy

Submitted: 5 years ago.
Category: UK Property Law
Expert:  Stuart J replied 5 years ago.

Have you contributed to the mortgage? You say that your mother pays your share of the mortgage.

Can I have financial breakdown please?

Thanks

JL

Customer: replied 5 years ago.

Hi James,

 

Yes, I initially contributed by giving half the mortgage payment to my brother. The mortgage was roughly 200,000 pounds. As I understand it equity in the property was saved (approx 100,000) and the property had the potential to be worth more. Out of the mortgage my brother banked about 50,000 pounds into his account after deduction of the conveyancing costs and the surplus funds were supposedly earmarked for repairs and improvements as the property was in a poor state of repair. I was told if we carried out the necessary repairs and improvements we could significantly increase its value, perhaps by twofold because that was the average rate for neighbouring properties.

 

In five years circumstances have changed and the house has deteriorated as it still needs the repairs. We took a fixed rate mortgage for two years, during this time I struggled with my finances as I had to pay rent elsewhere. Due to the struggle my mother stepped in to help and she continues to pay my half (50 %) of the mortgage. However I have learnt that she still maintains payment of the initial half mortgage payment even though interest rates have plummeted a few years ago and the mortgage switched to variable rate resulting in a lower monthly cost. My brother did not tell her about the reduced payment until I alerted her. Realistically my mother is now paying more than half the mortgage and she still contributes about 59% per month. She is a pensioner now and it seems she is being taken advantage of too. My brother and wife are both working and are in good paid jobs. My mother recently informed me she wants to stop paying the mortgage altogether. This is putting pressure back on me and I would really like to get out of the situation before it gets any worse.

 

I hope this breakdown is sufficient enough for you. I look forward to hearing from you.

 

Kind Regards

 

Kimmy

______________________________

 

Regarding your disclaimer... I look forward to your carp typing! I just hope you can read my carp! I understand your 2 finger skills may take you a while and I look forward to your objective analysis/recommendations and hope you can help.

Expert:  Stuart J replied 5 years ago.

Thanks. The fly in the ointment is your mother's occupancy and contribution. Forgetting occupancy, the equity (value) appears to be split 3 ways. You, bro and mo.

Assuming that you can work out on paper what each has contributed in reasonable detail then that forms the basis for a settelement BUT he wont deal!

He cant bury his head.

Geta solicitor to write to tell him that you are offering him the opportunity to buy you out for £X. The sol must say that if he doesnt then the house must be sold and proceeds divided.

If he doesnt agree to buy you out or sell, threaten application to court for an Order for Sale and asking court to get him to pay costs.

If he still wont buy you out or sell, the court can make him.

If he wont sign papers, the court will do that for him. It will all cost him money if he ignores things.

 

Can I help further?

JL

 

 

Customer: replied 5 years ago.

Thanks James. Your point about demonstrating contributions is an awkward one since payments all go from my brother's account. You mentioned that my mother's contribution is the fly in the ointment. I am assuming if I can get access to her records I can demonstrate her contribution at least, but that does not express her intentions to help me, could my brother argue she was helping him because I refused to pay? Is there anything my mother can do to improve the situation? Could she write a letter to me and my brother declaring she has paid/is paying my half so as to make future settlement more transparent and easier? If so, can she do this herself or would it need to be drawn up by a solicitor and witnessed? If she can this would be of immense help as she has already encouraged my brother to create a Deed of Trust with me, but ignorance has prevailed.

I have heard that when children occupy properties under owner dispute the courts won't sanction a forced sale until they reach the age of 16. I am hoping this would not apply in my situation. Could this be a factor considered or does this only apply in the case of parents or legal guardians of children who are the owners?

I am aiming to have this all resolved within the next six months before I return to the UK. Do you think that is feasible if I instruct a solicitor right away? I would like to guide my mother accordingly in the event of a forced sale. How long would an Order for Sale take to complete should he ignore things further?

Kimmy

Expert:  Stuart J replied 5 years ago.

The age that they wont force children out if living with parents is 18. If your bro is under 18 he cant own property. I dont know where the age 16 bit comes in. It doesnt apply on these facts.

You need to prove who paid what. If you can show money paid to yr mum and it is for example monthly, then it must be for something such as a mortgage .

Anything from your mother as to payments and intention is useful.

This could take 6 months or even years to resolve so sooner the better.

The best thing that can happen, if he isnt prepared to be reasonable is that he ignores things. Lawyers arguing can spin things out.

Tell them to warn him and if he doesnt play ball simply apply to court.

I would start ASAP.

JL

 

Customer: replied 5 years ago.

Thanks for your quick response James. To clarify, my point over children was in relation to my brother's 1 year old son who lives in the property with my brother (who is in his 40's) and his wife as well as my parents. Obviously I am in a difficult situation family wise and if my brother won't cooperate I have no choice other than to take action as you have suggested which may lead to an Order of Sale. You said ‘The age that they wont force children out if living with parents is 18.' Do you mean the courts could force me to wait until my brother's child reaches 18 years old before the Order of Sale goes through? The fact him and his wife have started having children and may have more could really delay things further. Can this really be the case that I, the sister, can be held hostage and indirectly responsible for the welfare of his child/children until the age/s of 18? Or did you mean because this is a sister-brother ownership issue that the courts won't do anything to delay the Order of Sale as the child welfare would not apply in the circumstances?

I have a few further thoughts... You mentioned that my mother's contribution is the fly in the ointment... Although my mother is not an owner of the property I note you have indicated that the equity appears to be split 3 ways, also there is a need to work out what each of us has contributed to form a basis of settlement. Does this mean that the equity could be split 4 ways if my brother's wife claims she has made contributions to the property? Or for example, if anything happened where my mother or I couldn't pay, could my brother's wife influence the outcome through contributions to my brother? I assumed she was restricted to my brother's ½ share of the property but I have taken it that my mother seems to have some influence (due to her contributions) over settlement and this could therefore mean my brother's wife does too so this could get very complicated. Do occupants that are not the property owners have any rights over its division and settlement? Please advise.

Thanks for your patience

Kind Regards

Kimmy

Expert:  Stuart J replied 5 years ago.

I wouldnt worry about the child because it isnta child of the "house partnership" but just of bro and sis in law. people dont not get evicted just because a child is involved. local authority will rehome chil;dren. you are thinking of children in divorce cases and house sale on divorce.

 

The SiL can claim she paid chunks of £ but will need proof. It is most unlikely on these facts she paid to the mortgage too. if she did, she would only be paying his share which reduces his share.

 

There is no restriction on equitable shares, it comes down to contribution %.

 

if yr Mo and u both want it sold, he is on very shaky ground.

 

Please dont forget to press accept or the site keep all yr deposit and I get 0 for time.

 

Thanks

JL

 

 

Customer: replied 5 years ago.

James, I would just like to thank you for your prompt and efficient service. Overall I am very satisfied with your answers and I now feel well armed with the relevant information to pursue this further. I am certainly going to accept your answer. Please bear with me I am new on here and I am not sure that if I accept now I will lose direct contact with you perhaps leaving follow up and clarification to other experts. Your responses (which I hope I have interpreted correctly) have inspired some closing thoughts and I would like you to answer and clarify these areas as you know my case well. These are as follows:

 

  • 1. As I am abroad and need to get the ball rolling quickly are there solicitors in the UK that can deal with my case remotely or would I need an international lawyer from the country I am presently in to commence the work? Please advise.

 

  • 2. Are you therefore saying as it stands my sister in law has an interest in my brothers half share, but if she were to prove she paid more for any reason (she has had access to the 50, 000 funds that my brother controls) or she starts paying my half mortgage if me and my mother for any reason are unable to pay, she (and my brother) can increase their equitable share, so under those circumstances if I cannot prove my mother's contribution and intention my case is much weaker (and I could lose out) and my sister in law (and brother) would not be restricted to my brothers initial half share only? Is my thinking correct, please advise?

 

  • 3. As things stand my sister in law who is not on the mortgage or deeds has an open unrestricted interest in the property through her occupation (and possible contributions) because my brother refuses to implement a Deed of Trust and if my brother continues to ignore me OR if my brother and wife were to split/divorce, his wife can also argue a share of my mother's contributions if intentions are not expressed and documented by my mother? Am I interpreting your advice correctly, please advise?

 

I realise my questions are long, I'm just trying to get this all clear in my head so thanks for bearing with me. My mum is getting too old to deal with this and I believe I was ill-advised when I got involved. So, I would be very grateful for any additional closing advice you have to offer so I can relay things to my mother accordingly in the hope that she gives her full support so she/we can do something to alleviate any potential long drawn out disputes in the future.

Thanks once again for all your help James.

Kind Regards

Kimmy

Expert:  Stuart J replied 5 years ago.

Thanks. Questions dont close once you accepted, the thread remains open usually for some weeks.

 

To answer

1 Many sols will work remotely but may want ID certified by a solicitor local to you. You need English Lawyer preferably in England.

 

2. Correct but remener she has to prove that she paid £ too. Proof works on both sides.

 

3 She can claim part of either what she paid or of the bros share. To claim more than a part of his share she must have paid money that neither you, nor mo or bro paid. Basically if she paid bros share of mortgage for 12 months she is entitled to part of bros share, not yrs or mo's.

 

JL

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