Property Case

[just_me]

Re: Property Case

They're unlikely to get a sale of the property: tenants live there so they're protected and you have registered a marital notice for the property. Only if they try to get the money off you would that IOU issue be useful. They want to force the charge for sale of the property, not get the IOU money back.

im a little confused. Why would they be trying to force a sale if they have little chance of achieving that? Surely their solicitor would have advised them to try to reclaim their money if that were the case?

[Openlaw15]

Re: Property Case

im a little confused. Why would they be trying to force a sale if they have little chance of achieving that?

Well this is repossession matter right, what else could it be? They don't seem to care - they just want to try to force a sale but they're ignorant to laws in England that protect spouses and tenants.

[just_me]

Re: Property Case

So is there any point to the counterclaim that the loan s a sham? Would that not be best argued in a divorce court.

also ... Theoretically speaking ... If we agree never to get divorced would that mean I'm always protected by the home rights?

also, would they not be arguing that because of the IOU their charge actually predates my matrimonial home rights and thus has priority?

[Openlaw15]

Re: Property Case

So is there any point to the counterclaim that the loan s a sham? Would that not be best argued in a divorce court.

also ... Theoretically speaking ... If we agree never to get divorced would that mean I'm always protected by the home rights?

well, divorce complicates things. You don't have a legal right to the property, ie it's in H's name only. You will have some sort of financial interest, ie beneficial right. Normally, property is split 50/ 50 unless the party argues it shouldn't be. In your situation, the property was owned by H from 2005. So as the property was owned before your marriage, you'll just get some of the money, may be up to 25% for the time you have been married. However, H's parents will argue they have the charge's value on your divorce. What is the property worth, how much is the land charge valued at currently, as it gains interest too?

[just_me]

Re: Property Case

Property is worth around 180,000 and I have been offered 2/3 by H (to house his children). Charge is 140,000

[Openlaw15]

Re: Property Case

Property is worth around 180,000 and I have been offered 2/3 by H (to house his children). Charge is 140,000

A good barrister: qualified court advocate expert, will have that removed as IOU is dodgy as hell. I wouldn't trust a solicitor to do that unless they're really brilliant.

Hmm that charge is very weighty in proportion to the property' value. It may well be worth paying a good lawyer to have it removed..if he's good enough he'll find a way. I know there are ways but they're not going to be cheap either. I would not self represent (litigant in person) in this very complex matter. If you can get the charge removed .. the home can then occupy you and your family, at the point of divorce.

[just_me]

Re: Property Case

I have a direct access barrister as I can't afford a solicitor as well unless it is absolutely necessary.

[Openlaw15]

Re: Property Case

I have a direct access barrister as I can't afford a solicitor as well unless it is absolutely necessary.

explain what a direct access barrister is. Is this a barrister qualified in Australian and England property law?

[just_me]

Re: Property Case

also, would they not be arguing that because of the IOU their charge actually predates my matrimonial home rights and thus has priority?

can I also get your opinion on this angle please? I'm very grateful for the attention you have shown thus far. I'm going to have to go to bed in a few minutes as its past midnight here, but will check in the morning for any more replies.

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It means I have just a barrister to represent me now, no solicitors. He is in England and is just an English lawyer.

[Openlaw15]

Re: Property Case

can I also get your opinion on this angle please? I'm very grateful for the attention you have shown thus far. I'm going to have to go to bed in a few minutes as its past midnight here, but will check in the morning for any more replies.

- - - Updated - - -

It means I have just a barrister to represent me now, no solicitors. He is in England and is just an English lawyer.

There are the problems with the IOU. First it was a perfect gift (see below), and then it apparently changed to an IOU loan terms/ conditions. H can say he made a mistake by agreeing to the IOU's terms under duress: ie no contract it's simply illegal. If the property was formally transferred then the gift was made perfect, ie he signed relevant transfer deed forms which had given H title, ie H's legal interest (legal formalities dealt with). Legal interest means water tight. At best, the IOU which H's parents' will argue is a 'guarantee' is an equitable interest, ie not water tight/ discretionary. Alternatively the clause terms are simply too vague. 'When he is in a position to pay for it' does not define when (ie no time), no date given, no definition of what position or able to pay for it, ie is years in the future or when he starts a good job???

[just_me]

Re: Property Case

Thank you Openlaw. It's a lot to get my head round and I want to make sure I ask the solicitor the right questions. I appreciate all your responses so far.