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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

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.

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.

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

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

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.

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....

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?

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.

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

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.

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.

lunar1 Thu 15-May-14 15:27:06

I would advise your mum to be careful here. The house I bought was on the market for far more than we could afford but I fell in love with it.

I put in what I thought was a stupidly low offer and was very confused when the estate agent accepted it immediately.

Unknown to us the owners divorce became so messy that the court sent someone out to value it and ordered it to be sold at the first offer of xxx or above. It was valued in the midst of the house price crash and we bought it for £75,000 less than other houses had sold for just 2 months before.

If there is anyway this can be done amicably I would try and encourage her to sort it out.

PeterParkerSays Thu 15-May-14 15:14:23

I doubt he can say that the house has to be sold but, as she's unlikely to magic up 37% of £400k +, I guess it's a moot point.

Is the issue about 1 or 2 bed properties that they are going to young couples / professionals so aren't as comparatively lower than houses as would usually be the case?

I'm sorry but your mum is going to have to look at a neighbouring borough. She'd be better off buying, and have an asset, than renting with the house sale balance as a lump sum, but I guess you know that.

Hedgehog80 Thu 15-May-14 15:05:42

DM wants to remain in the house but df said that even if she can raise the exact amount to pay him off he doesn't want it from that,he only wants the money AND the house to be sold.

poshfrock Thu 15-May-14 14:51:35

So if dad is due 37% of £450k that would be about £166,500.

Mum could sell house for £450k and buy 2 bed property for £330,000 ( based on your figures). Give dad immediate cash lump sum of £120K from sale proceeds.

Then do equity release on new property for balance owed to dad of £46,500. That would only be 14% of property value so more likely to be approved. Also far less interest to roll up. Again no payments to make in lifetime and loan repaid on ultimate sale of property.

Of course that's all dependent on dad being prepared to wait for balance of funds while mum buys new property and arranges finance but it could work.

poshfrock Thu 15-May-14 14:42:49

She could consider equity release. That may allow her to borrow sufficient to pay out your dad and she could stay in the property. The loan would be repaid when the house is ultimately sold (most usually on death). The downsides are:
1. She is quite young so if she lives another 25 years that's 25 years worth of interest rolling up
2. 37% is quite a lot to borrow - she may be restricted to 20-25%
3. If she wants to downsize in later life ( eg the house may become too much for her as she gets older) then she will have to repay the loan although often it is possible to port it over to a new property

Personally I think she should downsize now and let your dad have his share but ER is an option.

Hereward1332 Wed 14-May-14 16:02:25

Unfortunately there is no legal remedy permanently to deprive your DF of his entitlement. Your mother could have sold the property earlier - there is no legal burden on your DF to have demanded it. She is now left in a situation where she cannot afford a property of the size she wants in the location of her choice. It does sound as though she is clutching at legal straws to blame someone else.

Hedgehog80 Wed 14-May-14 15:13:15

Df wants a lump sum

NatashaBee Wed 14-May-14 15:12:05

Could she pay rent to your DF for his share of the property? To be honest though, she has stuck her head in the sand about this and should have dealt with it earlier.

Hedgehog80 Wed 14-May-14 15:11:24

The cheapest 2 bed in area DM would like near to where she is now was an ex council property 329000 pounds!

SolomanDaisy Wed 14-May-14 15:04:14

It must be a very unusual property market there.

Hedgehog80 Wed 14-May-14 15:01:54

Df spoke to an estate agent last week who gave him a rough estimate and looking at similar properties in the area it seems about right. I've had a look for 1 or 2 beds and they are so expensive round here and DM would struggle to find anything suitable. I think she will have to look at relocating completely as her share will not get her anything.

SolomanDaisy Wed 14-May-14 14:36:31

How recent is the 450k valuation? If she is looking in the same area and can't afford a 1 bed flat for 300k I'd be surprised if a 3 bed house was only worth 450k.

MidniteScribbler Wed 14-May-14 09:50:33

She should consider all of these years she has lived rent/mortgage free that she wasn't entitled to. The house should have been sold when they first split. Time for her to face up to reality.

OwlCapone Wed 14-May-14 07:21:38

There can be a hefty service charge for those retirement apartments. Relatives recently decided to go for one and this out them off initially.

Mini05 Tue 13-May-14 23:31:28

I think you DF knew exactly what he was doing!
Leaves and then says he won't work so she doesn't get any maintenance for herself or dsis(just sums him up) and then doesn't act on getting his share( why because he knew he'd have to pay main thence!!!)
So left it till it went up in value!! (I'd be finding out how much the house was worth back in 2005) and then demand when HE thought he wanted his money back. Very selfish and arrogant

If your mum won't find out for herself, then you do it on her behalf if you know all the facts. Everybody is entitled to free half hour or maybe hour in any area.

As regards you dsis what makes her think DF will be giving her any money, let's face it he didn't care when he left weather she had food or clothes.

An other idea do they have any retirement apartments where your mum leaves, you know the newer ones where they have there apartment but also a lounge where residents can go for a chat if they want. Newer apartments mean less out goings and no maintence.

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