One for the property lawyers
Discussion
Hi, thanks for looking.
We have a client who wants to remortgage his house but has discovered a stumbling block.
10 years ago, he bought the property with his girlfriend, as joint tenants. After a couple of months, his girlfriend left him and he hasn't heard from her since.
He carried on living in the house, paying the mortgage in full. A couple of years later, he met someone else, they married and continued living in the house.
He has absolutely no idea where his ex-girlfriend went and, as matters stand, can't remortgage (or indeed do anything such as sell etc) without her say so, as she's listed on the deeds alongside him.
What does he do? We, as a firm, have only had this scenario once before and, fortunately, we managed to find the ex.
Does the Court have the power to make an Order removing someone from the deeds to a property? I assume we'll have to go down the route of instructing enquiry agents then seeking Counsel's opinion assuming she can't be located.
If anyone has any ideas, I'd love to hear them.
Thanks again.
We have a client who wants to remortgage his house but has discovered a stumbling block.
10 years ago, he bought the property with his girlfriend, as joint tenants. After a couple of months, his girlfriend left him and he hasn't heard from her since.
He carried on living in the house, paying the mortgage in full. A couple of years later, he met someone else, they married and continued living in the house.
He has absolutely no idea where his ex-girlfriend went and, as matters stand, can't remortgage (or indeed do anything such as sell etc) without her say so, as she's listed on the deeds alongside him.
What does he do? We, as a firm, have only had this scenario once before and, fortunately, we managed to find the ex.
Does the Court have the power to make an Order removing someone from the deeds to a property? I assume we'll have to go down the route of instructing enquiry agents then seeking Counsel's opinion assuming she can't be located.
If anyone has any ideas, I'd love to hear them.
Thanks again.
SpaceCowboy said:
unless anyone can recommend a better course of action.
deva link said:
(I'd be tempted to get him to forge her signature, and get a mate to witness it, but you probably don't want to tell him to do that).
:edit:
WTF did S-Cowboy's post go? Its vanished into.................... .
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Space
gawd don't you just hate it when you quote someone - and then they delete their post - it gets all
ing >> Edited by pagey on Tuesday 4th October 23:58
deva link said:
I can't believe that you (a solicitor ) are asking a question like this on an Internet forum.
Why? As much as I'd like to say I do, I don't know the answer to everything - that's my 6 year old niece's job.
I put the question to the forum after discussing it with my boss and another partner, who between them have 70 years' property law experience.
They're both stumped and the general consensus seems to be to seek a barrister's opinion, unless anyone can recommend a better course of action.
I, personally, don't practise in property law and have had nothing to do with it whatsoever since my pre-qualification days, but he decided to rack my brains regardless and is well aware that I'd put it to the forum.
Funnily enough, I think we'll give recommending that the client forge his ex's signature a miss.
Thanks for the replies.
Edited to add: - Sorry Pagey!
>> Edited by SpaceCowboy on Wednesday 5th October 00:06
I don't have a constructive answer to this one but a friend of mine made a few quid on a similar scenario a few years ago.
She'd been married and although they'd divorced, for some reason they'd not dealt with the property issues, she'd moved out and he'd continued to pay the joint mortgage for a few years and then wanted to move. He required her signature to sell, she was advised that it wasn't unreasonable for her to ask for a share of the profit as although he had been paying the mortgage she had been subject to the "risk" that he would stop paying it and she would then have been equally liable for the mortgage plus she had been unable to get another mortgage herself for this time. She actually was very nice and didn't go for the opportunity to make a quick buck but this might be something for your client to take into consideration particuarly given how much the property has probably increased in value over the last ten years.
I guess you'll need to use an enquiry agent to try to trace here - presumably followed up by adverts etc. as you would for a missing beneficiary. Interesting though - will you let us know what you find out?
She'd been married and although they'd divorced, for some reason they'd not dealt with the property issues, she'd moved out and he'd continued to pay the joint mortgage for a few years and then wanted to move. He required her signature to sell, she was advised that it wasn't unreasonable for her to ask for a share of the profit as although he had been paying the mortgage she had been subject to the "risk" that he would stop paying it and she would then have been equally liable for the mortgage plus she had been unable to get another mortgage herself for this time. She actually was very nice and didn't go for the opportunity to make a quick buck but this might be something for your client to take into consideration particuarly given how much the property has probably increased in value over the last ten years.
I guess you'll need to use an enquiry agent to try to trace here - presumably followed up by adverts etc. as you would for a missing beneficiary. Interesting though - will you let us know what you find out?
A member of my family has been in the same situation and the other person who hadn't paid a penny since day one (and I mean not a single penny not even the initial purchase deposit) ended up getting awarded a 40% share in the equity of the property with no ongoing responsibility for repairs or maintenance .....a bit of a result for her ....the money grabbing b1tch!
My relative also ran up a £12k legal debt fighting it.
My relative also ran up a £12k legal debt fighting it.
Not good news I'm afraid.. Advice below is given as an individual not as an employee of any legal firm.
Short answer is you need to find the ex. You are correct that your client cannot sell or remortgage the property without first buying her out and transferring the property to him or to him and his new bit of fluff....
Court will have no power to "remove her from the deeds". Even if it turns out that she is dead her interest will have vested in the beneficiary under her will or if she dies intestate prob vested in her parents.
Enquiry agents will need to find her. May be an interesting debate as to her share of the equity as the property will have increased in value over last ten years.
Bummer.
Short answer is you need to find the ex. You are correct that your client cannot sell or remortgage the property without first buying her out and transferring the property to him or to him and his new bit of fluff....
Court will have no power to "remove her from the deeds". Even if it turns out that she is dead her interest will have vested in the beneficiary under her will or if she dies intestate prob vested in her parents.
Enquiry agents will need to find her. May be an interesting debate as to her share of the equity as the property will have increased in value over last ten years.
Bummer.
I'm not a lawyer, but my boss is a barrister. He went through a similar thing. He split up with the g/f and has had to wait 12 years without contact/knowledge of whereabouts before he can do anything with the house. Sounds a similar story, but my advice.....pay the cash and get the professionals on the case...Too much at stake to make an error.
Cheers,
Chilli.
Cheers,
Chilli.
miken said:
Even if it turns out that she is dead her interest will have vested in the beneficiary under her will or if she dies intestate prob vested in her parents.
Not if it's owned as Joint Tenants. The survivor would get her share automatically.
It's not my area but I would have thought that, as long as you make all possible reasonable enquiries to find her, you could apply to the Court to have the Judge sign a Transfer on her behalf to transfer her share into guys name.
{usual disclaimer applies!}
Racylady said:
Even if it turns out that she is dead her interest will have vested in the beneficiary under her will or if she dies intestate prob vested in her parents.
Not if it's owned as Joint Tenants. The survivor would get her share automatically.
Indeed, you're thinking of "tennants in common", Mike
Rotaree said:
Not sure if this is constructive or not but I think I'm right in saying that if squatters live unchallenged in a property for 12 years (IIRC)the property passes to them. Might something similar apply in this case?
I was just think this myself!
Also I am aware of the following case:-
An ex neighbour of mine bought a house with his gf. Both names were on the mortgage. She left.
So far exactly the same story.
However he sent her the bill for half of every months repayment up to the month in which her name was removed from the paperwork. Fortunately for her that wasn't many months.
So if the ex gets greedy why not bill her for the "reasonable expenses" of him covering her side of the mortgage for 10 years.
Another thought.
Why sell. Rent it out!
I favour the forged signature route but possibly if you did contact her and emphasise that you are not after her money and you won't make a fuss over her share of the mortgage etc she might just sign if you pay a sweetener for her time.
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