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How to sell my share in a mortgage?

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    #32
    D3PO
    Registered Users Posts: 7,879 ✭✭✭D3PO


    Jo King wrote: »
    First National v Ring [1992] 1 I.R. 375 held by Denham J. in relation to a family home:-

    "although the monies achieved on the sale of the premises on the market at this time would not nearly meet the debts, this was not a valid reason to refuse an order for sale."

    thats a bank taking action against an individual, not quite the same thing now in fairness


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    #33
    Jo King
    Banned (with Prison Access) Posts: 2,139 ✭✭✭Jo King


    Sleipnir wrote: »
    He has to pay the difference??
    How on earth could the boyfriend be forced to pay the the entire amount just because the girlfriend wants out of the legally binding contract?

    "I want out, I'm leaving you to carry the entire debt" :confused:
    You think the courts allow one party to break the contract and make the other party entirely responsible for the debt?
    You can't bring the situation to an end without the debt being satisfied.

    You're also assuming that the boyfriend is refusing to sell out of malevolence or whatever which is usually where the partition acts come into play.
    The boyfriend might be quite willing to sell the property entirely but knows that
    a.) he won't get a buyer
    b.) Even if he does, they'll both still owe a small fortune to the bank.


    The boyfriend has a choice pay up or sell. He can't force the o/p to stay in the situation. Both parties are jointly and severally liable on the mortgage. IF she stops paying the bank can sue him anyway.


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    #34
    Jo King
    Banned (with Prison Access) Posts: 2,139 ✭✭✭Jo King


    D3PO wrote: »
    thats a bank taking action against an individual, not quite the same thing now in fairness

    The bank is in the same position as a co-owner for the purposes of the Partition Acts.


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    #35
    D3PO
    Registered Users Posts: 7,879 ✭✭✭D3PO


    Jo King wrote: »
    The bank is in the same position as a co-owner for the purposes of the Partition Acts.

    in terms of the act yes maybe (legally this is questionable as the bank owns the deeds until the mortgage is paye din full so is either full owner or not the owner in anyway) but in terms of a judge making a judgement using the legisltation dont tell me there is no difference in the decision making process


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    #36
    Sleipnir
    Registered Users Posts: 5,514 ✭✭✭Sleipnir


    Jo King wrote: »
    The bank is in the same position as a co-owner for the purposes of the Partition Acts.

    Who has the deeds to the property? The banks is not a "co-owner", the bank is the owner until the mortgage is paid to them in full. They want the mortgage paid regardless!
    Jo King wrote: »
    The boyfriend has a choice pay up or sell. He can't force the o/p to stay in the situation. Both parties are jointly and severally liable on the mortgage. IF she stops paying the bank can sue him anyway.

    No, if she stops paying, the bank will sue both of them, not one or the other.
    Again, you've again made the assumption that the boyfriend is refusing to sell which is when the OP could possibly use the Partition Act.

    You seem to think the Partition Acts is a sort of get-out clause which nullifies contract law. The boyfriend does not have to choose to 'pay up' or sell. He is not responsible for her getting out of the contract. He cannot be forced to buy it off her for above it's current market value just because she wants a clean break. Half the debt is hers and she needs to pay half the debt. Will selling the house clear that debt? No.

    Again, the partition act could be used if the boyfriend refused to sell but OP hasn't mentioned that he has refused to do this. Even if that happened, the OP is still liable for half the mortgage.


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    #37
    Jo King
    Banned (with Prison Access) Posts: 2,139 ✭✭✭Jo King


    Sleipnir wrote: »
    Who has the deeds to the property? The banks is not a "co-owner", the bank is the owner until the mortgage is paid to them in full. They want the mortgage paid regardless!


    The bank is deemed to be in the same position as a co-owner by the Partition Acts.
    Sleipnir wrote: »
    No, if she stops paying, the bank will sue both of them, not one or the other.
    Again, you've again made the assumption that the boyfriend is refusing to sell which is when the OP could possibly use the Partition Act.
    Of course the bank will sue both of them. It will be no defence for the boyfriend to say that he has only a half share.
    Sleipnir wrote: »
    You seem to think the Partition Acts is a sort of get-out clause which nullifies contract law. The boyfriend does not have to choose to 'pay up' or sell. He is not responsible for her getting out of the contract. He cannot be forced to buy it off her for above it's current market value just because she wants a clean break. Half the debt is hers and she needs to pay half the debt. Will selling the house clear that debt? No.

    Who said it would clear the debt. All she wants to do is exit the situiation with as little hassle as possible.
    You quoted something purporting to be from the Partition Act which wasn't. I take your comments on the Partition Act as being equally ill informed. Statute law overrides common law, which most contracts are. The boyfriend should have got himself properly advised before he went into this situation. If she wants out for whatever reason he will have no option but to adapt to the situation. If she brings proceedings that is what his choice will be, buy out or get out and pay off whatever sum is owing to the bank.
    Sleipnir wrote: »
    Again, the partition act could be used if the boyfriend refused to sell but OP hasn't mentioned that he has refused to do this. Even if that happened, the OP is still liable for half the mortgage.

    If the boyfriend agrees to sell then that is the end of the matter. The o/p is liable for half of the mortgage but she clearly wants to get out of it. Even paying off a loan to cover a shortfall between the sale price of the house and the amount due to the bank woyuld be preferable to being locked in to a long term situation with her boyfriend.


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    #38
    Sleipnir
    Registered Users Posts: 5,514 ✭✭✭Sleipnir


    I'm still waiting for you to point out where the OP said that the boyfriend is refusing to sell. If he's not, the partition act doesn't apply.
    Jo King wrote: »

    The bank is deemed to be in the same position as a co-owner by the Partition Acts.

    So you're saying that who is indebted to who has no bearing when in court? The bank is not the owner of the house? The three parties each own a 3rd?
    I mean, how does that work. Seriously, if it's true I'll hold up my hand but I'd love to know how that works.
    Jo King wrote: »
    You quoted something purporting to be from the Partition Act which wasn't.
    Where?
    Jo King wrote: »
    I take your comments on the Partition Act as being equally ill informed. Statute law overrides common law, which most contracts are.

    Ah, so you're saying the contract with the bank is null and void should one party refuse to sell and the other party uses the Partition Act to force it to be sold?

    Jo King wrote: »
    The boyfriend should have got himself properly advised before he went into this situation. If she wants out for whatever reason he will have no option but to adapt to the situation. If she brings proceedings that is what his choice will be, buy out or get out and pay off whatever sum is owing to the bank.

    And the girlfriend needn't have bothered because she had a get-out i.e, the Partition Acts?

    Again, you assume that the boyfriend is refusing sell. Please point out where the OP said that is the case.

    Jo King wrote: »
    If the boyfriend agrees to sell then that is the end of the matter. The o/p is liable for half of the mortgage but she clearly wants to get out of it. Even paying off a loan to cover a shortfall between the sale price of the house and the amount due to the bank woyuld be preferable to being locked in to a long term situation with her boyfriend.

    So you're saying that the bank does need to be paid back the full value of the mortgage now.

    The Partition Acts can be used to force a sale of the property should one party refuse to do so. Please show me where the OP suggested that the boyfriend was refusing to sell.


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    #39
    The_Conductor
    Moderators, Society & Culture Moderators Posts: 32,285 Mod ✭✭✭✭The_Conductor


    You know- I don't think the negative equity involved in the transaction was ever explored by the OP.

    I think its best to leave this thread be- to allow the OP digest the information and/or suggestions that have been offered here- and to get back here again (if they so choose).

    S.


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    #40
    Sleipnir
    Registered Users Posts: 5,514 ✭✭✭Sleipnir


    smccarrick wrote: »
    You know- I don't think the negative equity involved in the transaction was ever explored by the OP.

    I think its best to leave this thread be- to allow the OP digest the information and/or suggestions that have been offered here- and to get back here again (if they so choose).

    S.

    Actually, I think you're right. I'm off to bed.


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    #41
    Jo King
    Banned (with Prison Access) Posts: 2,139 ✭✭✭Jo King


    Sleipnir wrote: »

    Where?




    Post 22 above.

    IF the boyfriend agrees to sell - end of problem. If not, Partition Act application.
    The Partition Acts were there long before the loan application. There is no question of a loan contract being null and void. The loan contract provides for redemption, on terms. These are still extant.No one is obliged to keep a mortgage going for the full term. There is no contract between the o/p and her boyfriend obliging them to continue the mortgage for the full term. Each of them should have though about what they were doing when the started.
    The bank because of its mortgage is entitled to make an application under the Partition Act once it gets a well charging order.
    There was never any question but that the bank is entitled to recover all sums due.


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    #42
    Sallyanne3
    Closed Accounts Posts: 37 ✭Sallyanne3


    Higuys,

    To confirm, he will not sell. The house is everything to him. The house is remortgaged, him and me taking over from the previous co owner.
    I am checking out if i actually am on the title deeds |(I cannot remember that definitely) and if that makes any difference.
    Useful to find out about the partition act, it seems very vague though and many have differing opinions about its meaning, probably because it is so vague..
    There is an abuse element here so it may be apt, but is not a road i wish to go down.

    I had been hoping to be able to maybe sell and we would pay the rest of as a loan, but again, the banks would more than likely not agree, the house having been their security.


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    #43
    D3PO
    Registered Users Posts: 7,879 ✭✭✭D3PO


    Sally it would be great if you could keep us in the loop of what happens especially if you try and use the partition act to try and resolve this situation.

    would be interested in knowing how this works because as you have pointed out theres very differeing views regarding its application here.


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    #44
    Sallyanne3
    Closed Accounts Posts: 37 ✭Sallyanne3


    It is fascinating! I just wish my query wasn't the source of all the dispute.. I'm going to a solicitor today hopefully,i'm just waiting on them to confirm the appointment, so i'll let yez know todays verdict!


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    #45
    seachto7
    Closed Accounts Posts: 7,863 ✭✭✭seachto7


    in a similar (I think) situation, however my name isn't on any paperwork or deeds. I had been travelling so she got the full mortgage at the time. The plan was for me to sign into it once I had been working 6 months. We broke up in the meantime. I stayed on in the house for a good while after it paying half the mortgage. When I left, I was threatened with court, as we had a verbal agreement (we also had a verbal agreement we would love each other and live happily ever after...).
    I rang the solicitor who said my name was not on anything (deeds and so on..)

    So, I'm still paying half the mortgage (just a direct debit to her account), though I'm not in the house, but will stop in a few months. She doesn't want the house at all and can't afford to pay for it on her own, but if I stop paying, am I legally ok to do this?


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    #46
    astrofool
    Registered Users Posts: 16,641 ✭✭✭✭astrofool


    Ask your solicitor. If you don't have one, get one.

    At an absolute guess, with no other details, you should be legally ok (have you got a lease for staying in the house, as if you aren't on the deeds, you're technically a tenant).


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    #47
    seachto7
    Closed Accounts Posts: 7,863 ✭✭✭seachto7


    nothing. all i did was set up a direct debit ages ago, and just paid in half of what the mortgage was into her bank account. I was told "you can walk away if you want", so I did, but now there is the threat of "verbal agreements" and the likes.

    I'm prepared to write off what I put into the house.

    Sorry for hijacking/taking the thread off topic, but the situation the OP is in, is one I could have been in myself if I was signed into the mortgage, that's why I read through the thread...


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    #48
    The_Conductor
    Moderators, Society & Culture Moderators Posts: 32,285 Mod ✭✭✭✭The_Conductor


    seachto7 wrote: »
    nothing. all i did was set up a direct debit ages ago, and just paid in half of what the mortgage was into her bank account. I was told "you can walk away if you want", so I did, but now there is the threat of "verbal agreements" and the likes.

    I'm prepared to write off what I put into the house.

    Sorry for hijacking/taking the thread off topic, but the situation the OP is in, is one I could have been in myself if I was signed into the mortgage, that's why I read through the thread...

    If you've simply been paying half the mortgage- unfortunately- you've put nothing whatsoever into the house.

    What is likely to happen is the house will be valued, and if it is in a negative equity situation (which it would be most surprising were it not to be), your ex would most likely seek a lumpsum equivalent of 1/2 the negative equity, for you to simply walk away from the situation.


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    #49
    seachto7
    Closed Accounts Posts: 7,863 ✭✭✭seachto7


    I've no hope of ever getting what I put into the house back (deposit etc.), and I accept that. I said a few months ago "the house is yours, I'm out", I don't have to pay anything if the house is sold at a loss as my name isn't written on anything..
    yes, it seems ruthless of me, but I won't go into the details here..


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    #50
    The_Conductor
    Moderators, Society & Culture Moderators Posts: 32,285 Mod ✭✭✭✭The_Conductor


    seachto7 wrote: »
    I've no hope of ever getting what I put into the house back (deposit etc.), and I accept that. I said a few months ago "the house is yours, I'm out", I don't have to pay anything if the house is sold at a loss as my name isn't written on anything..
    yes, it seems ruthless of me, but I won't go into the details here..

    You don't have to have been on the paperwork. It might get horribly legal- but I have seen similar cases where the reverse was true- and the person leaving the property was suing for a share of the increase in the value (this was during the bubble years), and was successful in their attempts- despite there being no paperwork. I don't see why the inverse would not also not hold.

    If you do walk away- it goes legal- and you also have the associated costs of this to factor into the equation.

    The deposit and any money gone into the house (mortgage, bills etc) are sunk costs- into a depreciating asset. You can argue about them until the cows come home- the fact of the matter is- those payments represent past events and are not supported by the asset (the house). The house (the asset) has depreciated in value. Even mentioning the deposit- is bringing your association with the asset to the fore- and by doing so- you have to accept that there is now a negative value associated with it.

    The moral thing to do would be an independent valuation of the property compared to the amount outstanding on the mortgage. Split the difference down the middle- take out a loan to pay this lumpsum, and have nothing whatsoever else to do with each other forever after.......

    S.


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    #51
    seachto7
    Closed Accounts Posts: 7,863 ✭✭✭seachto7


    thanks for the info.

    yeah, I've been trying to get a move on it for the last year and a half, but have been fobbed off "...we'll do it in April", "we'll do it in September" and so on..

    I suppose I'll wait and see what happens, she may rent it out and hold onto it herself, and I'll never hear from her again, or she may decide she doesn't want it and go down the legal road (though I'm not 100% sure what her case would be...)

    Her argument being, "you said you wanted a house too" (she got the mortgage on her own, so in theory on her salary/money could afford to pat for it if she really wanted to), my argument being "you said you'd love me forever more :) too..." If there wasn't a recession, I would have been told "good luck" long ago.
    I'll leave it at that and not hijack the original poster's thread anymore..


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    #52
    D3PO
    Registered Users Posts: 7,879 ✭✭✭D3PO


    SMSCarrick is right. even though your not on the paperwork there is a very strong probablility that if this goes legal you will be found libel.

    as he says ive also seen people use this to their advantage in the inverse during the bubble years to get profit out of property they are not on paperwork for.


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    #53
    seachto7
    Closed Accounts Posts: 7,863 ✭✭✭seachto7


    how could I be found libel (curious)?
    I got the money for the deposit from a 3rd party, she got the mortgage. She didn't have the money for the deposit, so essentially I got a loan for the deposit for her to get the mortgage. other than that, I just paid half every month, so if the good times were rolling, I still wouldn't be entitled to a bean whatever way I look at it...


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    #54
    The_Conductor
    Moderators, Society & Culture Moderators Posts: 32,285 Mod ✭✭✭✭The_Conductor


    seachto7 wrote: »
    how could I be found libel (curious)?
    I got the money for the deposit from a 3rd party, she got the mortgage. She didn't have the money for the deposit, so essentially I got a loan for the deposit for her to get the mortgage. other than that, I just paid half every month, so if the good times were rolling, I still wouldn't be entitled to a bean whatever way I look at it...

    Legal precendent says otherwise. People have been in a similar situation- sued, and won. Just because there was no written arrangment- does not mean that there is not understood to be a binding contract between the parties. This is legal discussion though- and I am *not* a solicitor/barrister.


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    #55
    seachto7
    Closed Accounts Posts: 7,863 ✭✭✭seachto7


    I suppose.. I dunno, I rang a solicitor to arrange an appointment, and quickly filled them in on the situation, and they told me "no case". The guy who signed the deeds with her pretty much told me "no case". Anyways, I won't take the thread off topic anymore


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    #56
    bobbiw
    Closed Accounts Posts: 211 ✭✭bobbiw


    Sallyanne3 wrote: »
    I have a joint mortgage, but for personal reasons would ideally like to get rid of it altogether.

    Can i sell my share in the house say by advertising it, i'm not looking for huge amounts of cash, just a clean slate. (i know probably legal issues here)?
    Can my ex object to this?

    If this not possible, can i force him to leave the house and rent it out?

    Could i have a solicitor draft a contract to say that i will leave the house myself on the understanding that ex will rent rooms out to cover the mortgage, to people of his own choosing, and not get me into financial jeopardy, so if anything does happen its nothing to do with me, and i gave him full responsibility?

    I know its not as simple as just signing over the mortgage to him completely as he needs to show he can manage financially, and be able to give me moneey, so that is not possible i don't think.

    Can anyone please advise? I will be going to a solicitor but i just wanted to see what other suggestions and ideas i would get prior to this.

    Thanks


    You cant get out of it at all, its not possible.

    What you would need to do is sell the property to your ex, you would both in effect sell it to the other person.

    Another loan would need to be taken out and the old one paid off. Thats pretty much the only way you can get out of the situation.


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