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Clare
Clare, Solicitor
Category: UK Property Law
Satisfied Customers: 34236
Experience:  25 years exeperience
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Hi, I wonder if you could help me, or at least point me

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Hi,

I wonder if you could help me, or at least point me in the right direction. This is a question about selling a house on which a restriction has been applied. First the background.

In short, I separated from my partner 3 years ago, and moved out of the house 1 year later. We were not married but we have two kids. I moved into rented accommodation leaving the ex- with our two kids in the house. I continue to pay the mortgage and until the beginning of this year, she paid me rent equal to the interest on the mortgage. All of this was to be tied up in a separation agreement but she refused to sign it.

Now she has stopped paying me rent, and taken me through CSA. She now gets slightly less money each month. I have contacted the CSA who are considering a variation; my payments have been reduced whilst they explore the validity of my claim. Of note, but perhaps of little bearing, she also left a significant debt (£6K) on my (not joint) credit card.

I have taken my ex- through the court to gain reliable access to my kids; its not succeeded as of yet. An order was made, she did not follow it. Now, she has failed to engage with CAFACSS etc and does not turn up for appointments. Mediation has also failed.

I now need to sell the house – the legal action has left me with significant debts. I have always promised to divide equally the equity to allow us both to move on (but would prefer not to do this given the debts to be honest). The complication is that she has placed a restriction on the house; at the very outset, the house was to be in joint names, but as she had a poor credit rating, the mortgage had to be in my sole name. She further went back on investing money from the sale of her house. Paperwork appears to have been lost by the conveyancing solicitor such that the end result is that the house deeds & mortgage are in my sole name. She does not have the ability to buy me out. This is a six-bed house, for her and two kids (6 & 11). In the separation agreement, she would have had two years in the house before anything would happen (NB she never signed it), which she has now had.

The restriction claims

"At the time of the purchase of the property, it was always the common intention of both the Applicant and the registered proprietor that they would both hold the legal title as “beneficial joint tenants” . [1] The purchase file held by the conveyancing Solicitor clearly confirms this [2]. The registered proprietor has stated to the applicant that he believed that the purchase should have been completed in the parties joint names and he is supporting enquiries being made with those conveyancing solicitors [3]. The applicant has resided in the property and has made contribution to the same [4]. A trust has therefore arisen and the applicant wishes to protect this interest by means of a restriction of the title until such time that a settlement has been reached between the registered proprietor and the applicant, who are now separated or a Court Order made pursuant to the Trusts of Land and Appointment of Trustees Act determining the level of interest”.

Comments
[1] This is true, when I thought she was going to invest some of the money from the sale of her house. This changed during the process of purchasing the house. I clearly had the opportunity to change this after the purchase, whilst we were still together but felt it inappropriate.

[2] No, these bits of the paperwork seem to be missing. The firm of solicitors now does no further convenyancing.

[3] I was demonstrating that I did nothing to remove her name, but that as I understood,a it was a requirement of the land registry and mortgage company that the names on the deeds and mortgage had to match.

[4] She did not contribute to the purchase of the house, not anything further.


Any help to untangle this unfortunate situation - I am currently on the financial edge, too much more expense and I will need to declare myself bankrupt. …. (Would that route solve the situation?)

Regards/thanks
Hi
Thank you for your question
I shall do my best to assist you but I need some further information first
How much is the house worth and how much is outstanding on the mortgage?
How much would a three bedroom property in the same general area cost and what assets does your ex have?
Claire
Customer: replied 4 years ago.

Hi


The house is worth around 280K, perhaps more if optimised for sale. Current mortgage is 180K. Three bed house would go for around 80-100K I suspect.


My ex has few assets I would imagine.


Peter


 

Hi
You referred to money from a property she was selling - what happened to that?
Claire
Customer: replied 4 years ago.
Not sure to be honest, she kept me out of those issues. I suspect it was spent, a car, we had two dogs for a while, she's now breeding cats etc ... Some was spent paying off her debts to her mother.
Hi
Does she have any income on which she could raise a mortgage at all?
Claire
Customer: replied 4 years ago.
I doubt it - she doesn't work as far as I know, she left/lost the job I knew about. She is trying to set herself up as a cat breeder but ....
Hi
I have to be blunt since there is little point in giving you false hope
You have clearly said here - and I suspect openly elsewhere that the original plane was always that the equity would be shared equally between you so the basis of the Restriction is indeed correct.
You are also in a position where you are not going to be able to force a sale of the property until your youngest is 18 or your ex cohabits.
This is because under Schedule 1 of the Children Act you are under a duty to help house the children until they are 18
In addition your ex can use TOLATA to try and claim a share of the equity when it is finally sold - and as I said you have already confirmed that that was meant to be the agreement
HOWEVER it is not all bad news.
She cannot have it all - if she wants a share of the equity then she is going to have to pay the mortgage from her income including all the benefits - if she wants not to have to pay anything then she accepts that she will walk away with nothing.
This may be best discussed using Family mediation (www.familymediationhelpline.co.uk)
I hope that this is of assistance
Claire
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