Buying ex out (Order Of Sale, Property Adjustment Order)

[exa3z]

My ex and I bought a property almost 10 years ago now, shortly afterwards we separated, and I was left in severe financial difficulty as she paid nothing towards our joint mortgage, not since day one. We were never married, but sometimes I think things would have been a lot easier if we were. After our initial 2-year fixed deal ended, I had no option but to change the mortgage to interest only, as this is the only way I could afford the payments without her contribution. Consequently also, I do not want to be paying the capital off a property that is rightfully only 50% mine, so for the last x years I have only been paying the interest off the mortgage, and still owe circa £110,000. If this is left like this, at the end of the current mortgage term of 25 years, the only way to pay the capital off will be to sell the property.

Roll on to now, where my finances are in a much better state, due to my dedication and hard work, I have contacted my lender and they are happy to lend me the amount I need to take over the mortgage on my own. However my ex partner is not cooperating at all with regards to the matter. I want to buy her out and cut all ties with her. I have explained to her that I want to do this so that at the end of the mortgage term I will have property to leave to our son ultimately. Whereas currently I won't have anything at all. I don't think she seems to understand the situation. All she sees is that she's named on "the house" and she's not paying a penny towards it. She seems to think this is a good thing. So any attempt to even discuss buying her out, she doesn't want to know, and immediately gets defensive and angry.

I will try my best to make her understand the situation, but if the worst comes to the worst, is there anything I can do legally to force her to cooperate ? I have spoken to a few lawyers over the last 12 months with regards to the matter and frankly I'm quite shocked that a lot don't want to know, telling me to "wait it out" and "not much you can do" etc.

I have looked around the internet and found information on Property Adjustment Orders (seems this is only if your married ?), and i supposedly can apply to the court for an Order of Sale, although i am unsure if this means that i have to sell my half too and buy another property, or can the court grand an Order of Sale and then i buy back the same property but in my sole name ? I don't really want to move if i don't have to.

Any advice on the matter would be greatly appreciated, this is the only thing left now to sever my ties to her.

[FionaC]

Re: Buying ex out (Order Of Sale, Property Adjustment Order)

Dear exa3z,

I am presuming that you live in the property and your ex-partner left with your son, this is because you say you don't want to move out.

There certainly are things you can do and you seem to have done some good research yourself!

You are right in thinking a property adjustment order is within divorce cases, however you could apply to the court to consider who has what beneficial interest in the property. In effect this means you say to the court, look this is how we legally own the property but because of our situation I think we should actually receive a different share each. It is a difficult area of law as the case law is changing rapidly and is very case specific. The court will of course look to how you chose to own the property on the TR1 form, which is the document you both signed when you purchased the property. These days in certain circumstances it is possible to say that this ownership has changed by over time in effect by the actions of the other party or joint actions.

The claim you would make is under the Trusts of Land and Appointment of Trustees Act 1996. The court can make an order for sale as well but provided you can buy out your ex's share you should be able to retain the property.

The situation is very different if your son or daughter is living in the property, or if they are in a very precarious financial position. Claims can be made under schedule 1 of the Children Act in these situations. If your child is in the property then this maybe why solicitors are saying you need to wait it out.

I would suggest you gather all the information together, how you purchased it, the price, mortgage documents. A current valuation, details of all contributions made by each of you and then approach a mediator. The mediator can contact your ex directly. if this doesn't work you may need to consider court proceedings. If you are going to take legal advice again I would suggest you check the lawyer is a member of "Resolution: first for family law" ( their website is useful) and ask in advance if they are happy to deal with Co-habitation cases.

Even if you can't transfer or sell the property now you could agree who will get what.

Good Luck with this.

kind regards,

FionaC

[exa3z]

Re: Buying ex out (Order Of Sale, Property Adjustment Order)

Hi FionaC,

Thank you very much for your response.

I am presuming that you live in the property and your ex-partner left with your son, this is because you say you don't want to move out.

This is correct. It's not that I don't want to move out as such. I've invested time and money into the property, so id rather stay as opposed to selling it and having to buy somewhere else if at all possible.

You are right in thinking a property adjustment order is within divorce cases, however you could apply to the court to consider who has what beneficial interest in the property. In effect this means you say to the court, look this is how we legally own the property but because of our situation I think we should actually receive a different share each. It is a difficult area of law as the case law is changing rapidly and is very case specific. The court will of course look to how you chose to own the property on the TR1 form, which is the document you both signed when you purchased the property. These days in certain circumstances it is possible to say that this ownership has changed by over time in effect by the actions of the other party or joint actions.

The property was purchased as Joint Tenants, and not Tenants in Common, and this is what is present on the title deeds. I have read somewhere on here that it is possible to change the ownership to Tenants in Common although I'm a bit unsure as to what I would gain from doing so.

The claim you would make is under the Trusts of Land and Appointment of Trustees Act 1996. The court can make an order for sale as well but provided you can buy out your ex's share you should be able to retain the property.

This is good to know, i was under the impression that an Order of Sale would mean I would have to purchase another property.

The situation is very different if your son or daughter is living in the property, or if they are in a very precarious financial position. Claims can be made under schedule 1 of the Children Act in these situations. If your child is in the property then this maybe why solicitors are saying you need to wait it out.

My son is not living in the property, although he does visit weekly.

I would suggest you gather all the information together, how you purchased it, the price, mortgage documents. A current valuation, details of all contributions made by each of you and then approach a mediator. The mediator can contact your ex directly. if this doesn't work you may need to consider court proceedings. If you are going to take legal advice again I would suggest you check the lawyer is a member of "Resolution: first for family law" ( their website is useful) and ask in advance if they are happy to deal with Co-habitation cases.

Even if you can't transfer or sell the property now you could agree who will get what.

Good Luck with this.

kind regards,

FionaC

I have all this information to hand, current balances, prices, a current valuation, the lot. I know for fact that 100% contribution has been made by myself and I can prove this if I can apply to my two banks for historic statements going back the last 10 years. Do you think this would be something I should proceed with ? I can highlight every payment made towards the mortgage and I can also highlight that any income has been solely from my employer with the exception of transfers from savings accounts etc.

I did approach a solicitor several months ago with regards to this issue, but at a much higher level, without knowing that I could take the mortgage on myself etc. At the time, he also did mention a mediator and that I should get in touch with one, as if i do proceed with court proceedings they would need to know that mediation has been attempted. I did mention that my ex would probably not show up etc. but it was mentioned that this would prove that she is not cooperating.

I have an appointment with the same firm again tomorrow, but this time with a specific task in mind (last time i approached it was more of a generic, what do i do from here), i will be sure to ask what you've suggested. I have a feeling that the next step is going to be for me to approach a mediator.

Many many thanks for your reply, it's been incredibly helpful.

Regards,