Removing name from a joint mortgage

My ex partner and I purchased a property jointly in 2004. The relationship came to an end in 2007. My Son and I left the property. It is now 2011 and I am still named on a joint mortgage. My ex partner has made some recent attempts to refinance with the mortgage company and i'm assuming to no avail as he is unwilling to discuss the matter with me. I have been accepted onto the local housing list as of 2008, but due to being named on this mortgage my priority is low. So since 2007 we have lived with my parents. I have been to seen a couple of solicitors, with no real advice given. Other than it being expensive, which I do not have the funds for and to give up working so i'm entitled to legal aid!!!. I just really want to know if there is anything that I can do to rectify this ongoing situation. As I feel there is no way out.

Many thanks

Well, there are two questions I'd like to ask you.

The first is, were you married, as opposed to just living together ?

The second is, have you any idea how much equity there is in the property ?

You see, if there is a joint mortgage you can remain liable on it under ordinary principles of contract law ; you borrowed money, you agreed to repay it, and that obligation can be enforced. You can't be released from the obligation without the lender's consent and it's extremely unlikely that it would be given in today's hard times.

He can't re-finance without your agreement if the property is in joint names. The issue really, is, whether there's sufficient equity in the property to make it worth your while to have a fight in Court over it.

LMM

Thank you for your reply.

We were not married. I have to admit I did not have much dealing in the mortgage when it was arranged etc..., it was more of a case of me just signing paperwork. I would assume though there is very little if any equity in the property.

Its not that I want anything from the property, other than to be able to move on.

dcd75

Do you mind if I ask, just precisely what is it you want to achieve here ?

If you ex re-finances, then from your point of view this removes the risk of being liable on the mortgage.

But if he is to re-finance, the property is currently in joint names, so he can't do that without your agreement. That could potentially be solved by your transferring your interest in the property to him. That leaves him sole owner of the property, But it could still leave you liable on the mortgage.

There is no law against living in a property with a zero or negative equity as long as you can afford the payments.

Do you think your partner would agree to a voluntary sale ? You may be able to take steps to enforce one; but before you start doing that it would be a good idea to get a valuation and work out if there's any equity ; otherwise you are left with (a) no home and ( b ) a debt.

LMM

My primary goal is to remove my name from the mortgage.

In the area in which I live, this would increase my priority on the housing list.

My ex partner will not sell, and is unable to refinance. He is paying the mortgage. But some payments have been late.

I would quite willingly sign the property over to him. But am wary of being found to have made myself intentionally homeless in doing so.

DCD

DAMN !!!

I was writing a reply and for some reason what I had written was obliterated at a stroke. I will have to start again.

Blast !!!!

Yes, I can understand why you didn't get a clear reply. This sounds to me pretty specialised and as luck would have it ( from your point of view ) I used to be a specialist in this field. But that was some time ago. Things may have altered since then.

The problem, from your point of view, is not that you are still liable on the mortgage. It is perfectly possible to have no right to occupy a house and still be liable on the mortgage - as a great number of ex husbands on this site will happily confirm. Or, on reflection, perhaps not so happily.

Your difficulty is twofold.

Firstly, you are the joint owner of a house. Now normally being the joint owner of a house entitles you to occupy it. Now in practice it would probably be sensible for you to get a Court order if you ex won't let you back in. But presumably you don't want to live with him or you would not have left.

Secondly, there is the way homelessness is defined. In general terms you are homeless if you have no accommodation which you are entitled to occupy by virtue of

an interest in it ; or
an express or implied licence to occupy.

Now I think you could expect the Council to say you are not homeless, firstly because you are a joint owner of the marital home and secondly because you are living with your parents by reason of an express or implied licence.

If you transfer your interest to him, you are likely to be ' accused ' ( not quite the right word but you know what I mean ) of intentional homelessness because you had property which you gave away.

The definition of intentional homelessness is made up of three constitutent elements :

1. You made a conscious act or decision ;
2. That this act or decision was the cause of your homelessness ;
3. That, but for the act or decision, it would have been reasonable for you to go on living in the marital home.

I will warn you, you have to tread very carefully here. The reason is that, if my memory serves me correctly, there is something in the Housing Act 1996 which says that if you do anything which is done with the specific purpose of making yourself homeless, the resulting homelessness can be treated as intentional.

So what are your options ?

So let me review where we stand.

You say you are not married. You could, at least in theory, apply for an order for the sale of the property. You might be able to agree with your partner to sell voluntarily. That would, if nothing else, dispose of the mortgage. But it would be wise, I think, to make sure you are not landed with a residual debt.

Another possibility is to apply for an order for the transfer of the property to you, for the benefit of your children.

This, however, is likely to be a realistic option only if you could afford to pay the expenses of running the home. If you couldn't, there would be no point ; there is no point in transferring to you a house you could not afford to run.

I would have thought that, if you can show that you could not afford to run the house anyway, even if it were transferred to you, the risks of intentional homelessness are reduced. This is because, if you can't afford to pay the costs, it can hardly be reasonable for you to go on living there.

It is always open to you to apply to the local authority for ' advice and assistance ' and you have little or nothing to lose by doing this.

May I suggest that you consider a benefits check with the CAB. Could you afford to rent, with the aid of such resources as you have or might acquire, including housing benefit ?

I am going to conclude, for the time being, by saying this. This is a pretty rarifieid field of law and most High Street solicitors would have limited experienceof it.

My experience is anything but limited but I retired many years ago and my knowledge may be out of date.

I would recommend Shelter as your first port of call. If nothing else they have access to up to date legal advice from people who know what they are doing.


LMM

LMM

Many thanks for taking the time to reply to my question.

Your reply has opened up a few more options for me. Which I can look into.

dcd