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DM house being sold-anything she can do?

(60 Posts)
Hedgehog80 Tue 13-May-14 13:09:13

My parents got divorced years ago (1998i think) at the time df was given a 37% share of the house which was meant to be sold when dsis, the youngest child was out if education or 18 yrs old.

That came and went, dsis is now 27. Df is now insisting the house is sold and DM doesn't want to. He said she can't even take him to court as once the divorce agreement was broken years ago its now just up to him to sell when he wants despite her having a bigger share. It was df choice not to sell he decided not to as dsis had been unwell and then he just moved away and didnt mention it till now.
DM said she can't afford costly legal advice so I wondered if anybody knew if what df says is correct that he can just go ahead and put the house on the market as he is going to see an estate agent?

Thanks

poshfrock Fri 16-May-14 06:19:36

Your dad is entitled to 37% of the value of the house. Provided your mum pays him this sum then he can't force a sale of the house unless his name is on the deeds. Is the house still in joint names? If so then he can take her to court and force a sale. He can still take her to court anyway as she is in breach of the original court order but that would just require her to pay him the money, not necessarily to sell the house.

Chunderella Fri 16-May-14 17:24:02

Just to clarify about free half hours, no not all lawyers do them and no they aren't an entitlement. It's just something some firms offer to get people through the door, particularly in certain areas of law. No firm I've ever worked at has done them, and that includes when I did family law (but I don't know the answer to this one, sorry). Your DM may or may not be able to find a family law solicitor who will offer half an hour of basic advice for free. If she can't, she's going to be paying, because there's no legal aid in this area of law. I would strongly advise her to get some advice from a reputable solicitor, though. This is going to be a rather expensive mistake if she gets things wrong.

MarathonFan Fri 16-May-14 17:51:27

I don't think your dad is automatically entitled to 37% of the value of the house now. If mum has maintained it since 2005 I think the lawyers could make a case for her to take her costs but she has lived (presumably) rent free in his share for almost 10 years so I imagine in practise that would be off-set. She won't have a hope of getting a court to allow her to stay - there may be some adjustment in the way the house is divided (but that could go either way) so she (and he) needs proper advice

The house should have been sold years ago and DF isn't wrong to want it sold now. DM won't need a mortgage - her share is surely more than adequate to buy a place of her own.

What does DF say about DSis' actions. That really is low, I hope your dad goes on a cruise with the money grin

Icimoi Sat 17-May-14 19:24:42

Your mum needs to be aware that if DF has to go to court to get the house sold, his court costs are likely to come out of her share.

HolidayCriminal Sat 17-May-14 19:31:20

it's not her house; she owns part of a property where she happens to live. What is the capital gains situation for the 37% share owner, does anyone know? How does that work?

Nappaholic Sun 18-May-14 00:25:57

DM is safe from CGT as the house has been her home. DF will be liable for CGT though.

Refer to the court order or subsequent deed of trust for any clues as to the division (beyond the split). There may be clauses about enhancements or maintenance costs.

Essentially though, if DF has to apply to the court, DM may end up paying his costs, plus interest at 8% pa from the date his share should have been paid out....

Hedgehog80 Sun 18-May-14 11:04:44

Really though ? Despite it being df choice not to sell in 2005. DM never asked him to not sell he just didnt and from his opinions currently I think he was just waiting for an increase in value.

TweedleDi Sun 18-May-14 19:35:30

But he didn't charge pro rata rent either since 2005 either, did he?

MarathonFan Sun 18-May-14 19:42:05

Well , the only reason for it to come to court now is if DM does object to the sale.

mumblechum1 Sun 18-May-14 20:01:15

The consent order will have specified how the 37% is calculated. It is almost certainly going to be the value at the point of sale not the point of agreement.

OP, from what you've said your mum has no realistic prospect of staving off your DF's demand for his money. If she can't afford to buy him out and doesn't want to sell, the only other option may be to take equity release but she should be very careful as sometimes these will charge a very high rate of interest.

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