It seems that I could be in serious trouble

[mamafridi]

My husband came back from the solicitors and was informed that we could lose the deposit for the flat we are in the process of buying.
We are 1st time buyers and have lived abroad for nearly 20 years so we were sometimes lost in the terminology in the mortgage contract and terms used by the solicitor, but At the same time I don't believe it is all down to our stupidity and that perhaps our solicitor could have explained specific terms especially as my husband is Italian.
The solicitor says the reason why we could lose the money we put down for the exchange is because as my husband's name is on the mortgage (as he is the only one working at the moment) that I would have to agree to be the "occupier" and it is this word which holds so much importance in the problems we are now facing. We thought occupier simply meant that I would be occupying the flat together with my husband and dd - nothing else. Instead, days after the exchange I received a letter from what was now my husband's solicitor that I had absolutely no say over the property and I was to sign an occupier's consent form more or less relinquishing all existence of where the equity was coming from, ie me and my husband equally. In that same letter I was advised to seek my own solicitor which I did and as a consequence of my wanting to have my name as part of the contributor of the flat we are buying we may lose our deposit, worse still lose the mortgage agreement altogether and the lose the flat. Then we could be sued by the people we are buying from and end up losing every penny we have worked our socks off for the last 18years.
I am at my wits end, we are awaiting the bank's opinion but completion is meant to be this Friday. Is there anything I can do?

I might be being completely ignorant, but why can you not take the mortgage in joint names and based only on your DH's earnings?

For some reason they would lend us less if it was in joint names, so that is why it was only in my husband's name.

Scottish law may be different but here we have the deed for the property in 2 names (survivor of if either dies) and the mortgage can be in just 1.
This means you both own the property.

Agree with Turnip. I wasn't earning when we took out our mortgage less than two years ago and my name is on the mortgage.

If the mortgage is entirely in your husbands name he is entirely responsible for the debt. If the property needed reposessing and you had a legal interest in the land they could not do so. Nor could they sue you for the money as the agreement is with him. So basically you are signing to agree that if the property needed to be reposessed you would get out.

This is not saying should you divorce you would not be entitled to a share (This is my understanding but I am not a divorce lawyer)

x-post.

Did the solicitor give you a piece of paper with an explanation of the legal terms used in the documents?

Can you not just let him make the purchase on his own . We are buying new house and husband is mortgaging it on his own.

We had a similar situation and the solicitor drew up a declaration of trust. This meant my husband wasn't on the mortgage (so satisfied the mortgage company's criteria) but we have a legal agreement that he is entitled to an equal share in the property.

I follow all of it until you might lose the flat.

I don's see why you can't have your name on the mortgage, even if you are not working.

Do you have a mortgage offer or not? Your last bit is making me wonder...

We went with these lenders because they were the only ones we found to lend the most and we had researched a lot of lenders.
The problem with me agreeing to be an "occupier" is that if my husband were to decide to sell the flat he wouldn't need my agreement. This seemed wrong as just because I am not working at the moment why should I sign away all my financial power over to the bank and my husband, seeing as half the proceeds of the equity were down to my hard graft over the past years.
Our solicitor did not give us any such explanation of he term, written or verbally. And she didn't even ask who the money belonged to but assumed that it was my husband's (perhaps because I am at home with my dd).

That's what happens one person mortgages a property , I trust my husband not to rip me off so have just stood aside and he is mortgaging it as I have bad credit history.
My money from our house sale is going into the new purchase but that's the risk we take , it's either that it I'd never be able to move.

Probably best to discuss all this with your solicitor. You're right that you shouldn't have to sign everything over to your dh. It should be possible to base a mortgage on one persons earnings, but have both names on it.
When we bought our 1st house, we weren't married and the solicitor tried to persuade us that in those circumstances the house would normally be only in DH's name. I wasn't having that! We were both paying the bills!
It wasn't a problem to have it in joint names, he just didn't advice it.

Advise*

Acemay- interesting point, though from what our solicitor says it is now too late to change the fact that we have now informed the bank of the fact that I am holding half the share in equity and we have to wait their decision. If they disagree to the new terms then our mortgage agreement is void and the sale will fall through. But I am going to mention what you said to the solicitor and see what she says.

Admittedly it was 25 years ago but I bought a property with only my name on the mortgage,dp had put up half the deposit and my solicitor drew up a document stating this,so if things had gone tits up he would have got his half of the deposit back.

Turnipin - the solicitor was not the one to demand the terms it was the lenders. They were the ones to have us over the barrel and clearly still do.

As much as I would like to trust my husband I am also realistic that perhaps one day in the future when his snoring gets too much to take and my bad cooking is sending him off galavanting to the pretty next door neighbour that he might be led by his testosterone and forget to mention he wants to sell the flat to move in with some seductive chefette.

Can you take a second charge over the property ? That way your share of the deposit could be protected and you could still allow things to proceed until you get in and settled.

Our mortgage offer and legal side are both in joint names. Solicitor asked if we wanted to own as Joint Tenants or Tenants in Common. Both ways can be done with equal shares. The forms for both should have asked who over 18 would be living in the house.

Perhaps you could agree to 'gift' the deposit to your husband to avoid the mortgage company withdrawing the agreement then cover your enitlement to half the property via a legal agremeent between you and your husband. Not ideal but wouldn't it be better than losing your entire deposit?

Acemay- another good suggestion. However, the problem seems to lie more with our solicitor and her not having made these suggestions weeks ago instead of just five days before completion. Now she seems to have given up completely and more or less stated that it is too late to make any changes in time and as a consequence to brace ourselves for the worse. I feel so frustrated with her.

Sign the forms and enter into an agreement with your husband to ensure you have financial protection. No need to involve the lender. No need to lose the deposit at all unless the solicitor has something else she isn't telling you. Once you're settled, fix the title and mortgage.

And it takes half an hour or so to draft some form of legal contract between you and your husband. If he's not happy to sign, then you have bigger problems.

Essentially you both agree that you have put in £x and are entitled to receive this back by x date. Failing repayment you will be entitled to have your name added to the titles or a second charge over the property etc etc. It really is a simple matter for the solicitors to draft to ensure you have protection. Don't understand why they are worrying you about a problem that is easy to resolve and capable of being done quickly.

Blistory - thank you for rational advice.

Unfortunately it seems that our solicitor is causing most of the problems, as far as I can make out - she prior to exchange did not clarify with us whose finances were paying for the flat, but just assumed it was my husband's money, even though it would be coming from our joint bank account. Then worse still She seemed to go along with what the lenders specified and didn't go through the terms with us to ensure we understood and were happy to agree with them.

Now that I have pointed out I wasn't happy just to be "occupier" she has got all huffy and has sent the details already to the lenders without going through other options that have been suggested on this thread and instead just given the lenders an ultimatum, which is to request that I have 50/50 share or we won't agree to the mortgage at all.

Get the advice of another solicitor?

Unfortunately, I think this has arisen because you didn't understand your mortgage terms. Your solicitor deals with the house purchase for you, but she doesn't arrange the mortgage - she checks you have one arranged, and then completes the legal paperwork the mortgage company requires to lend you money for the purchase.

If you had used a broker, s/he would have talked you through the terms of various mortgages, and highlighted conditions like this. There are other products that would have allowed you to have a joint mortgage with just one salary, as others suggest, but you didn't pick one of those. With hindsight, it probably wasn't appropriate for you and your dh to pick one in your dh's sole name... But it isn't your solicitor's role to help you understand or choose a mortgage: if you don't use a broker, you take on this responsibility yourselves.

Once you have chosen a mortgage, you are bound by its terms and conditions. Refusing to sign the occupier's consent form wasn't a viable option - the mortgage company wants to ensure that they can force a sale if your husband fails to pay the mortgage in his sole name and insists that you sign a doc agreeing to leave in those circumstances.

By refusing, you put your solicitor in an awkward position. She has no choice but to inform the mortgage co, because signing that form isn't optional - it's a key condition of the mortgage you chose, and of every mortgage in a sole name.

It maybe would have been kind for her to explain this to you better. But it sounds like you have been blaming her for something that wasn't her fault, so she perhaps isn't feeling kind, and I imagine communication between you isn't very good.

As far as I can see, if you don't want to lose your deposit and want to try to keep this sale, your options are as follows:

1a. Go to your solicitor and apologise. Explain you had misunderstood her role and now realise it wasn't her responsibility to help you understand your mortgage, and that with hindsight, you think you maybe should have used a broker. Ask her if she is prepared to help you try to save this house purchase now. If so, go to step 2.

1b. Find another solicitor who is prepared to help you try to save the purchase.

1. Decide whether you are going to (a) stick with this mortgage - in which case you must sign the form - or (b) switch to a new mortgage in joint names.

If (2a) you may be able to protect yourself with a signed agreement between you and your dh, but you need legal advice, because this wouldn't undo the fact that you will still have to promise the mortgage co that you have no claim on the house if the mortgage isn't paid.

If (2b) get a broker to help you find a new mortgage that suits your requirements. You will have to pay fees again, get another valuation, and perhaps borrow less or pay a higher rate. A broker may be able to help you negotiate and get a new joint mortgage with the same provider, which would save you time and money.

If you can't borrow enough via a joint mortgage, then you really have no option but to sign the form or lose the purchase.

1. If there is any delay at all, ask the solicitor to talk nicely to the sellers' solicitor and explain there has been a problem with the mortgage but that it will be resolved and you are still keen to proceed. If you have already exchanged contracts and set a completion date (and it sounds like you have) then you are legally obliged to complete by that date or lose your deposit... But if the sellers want to save their sale to you too, they might not hold you to that...

I hope you can resolve this. Good luck.