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Taking a name off Title Deeds - Possible?

  • 14-05-2013 08:50PM
    #1
    selfbuildache
    Registered Users, Registered Users 2 Posts: 248 ✭✭


    Hi,
    Hoping this is in the right place:

    Two people who were in a relationship, (not married) broke up and now want one name removed from the title deeds of a house they bought together.

    There is a mortgage on the property. Both parties are agreeable to the removal of the name from the deeds.

    The bank is unwilling to remove either name from the mortgage as neither party would qualify for a new mortgage. This is accepted.

    Two solicitors and a broker have said that it is possible to get one name taken from the title deeds but when the bank was asked, the couple were told no.

    Has anyone been down this route? Can it be done and if so, how?
    Do banks have total control over title deeds in this scenario?


Comments

  • #2
    LowKeyReturn
    Closed Accounts Posts: 934 ✭✭✭LowKeyReturn


    Banks aren't legal professionals. Why don't you just hire one of the solicitors in question to do the work and if it can't be done tell them you're not paying.

    In all honesty I don't know the answer but practically speaking it seems an easy one.

    I take it the removed partner will stop paying down the loan - if so what makes you think the bank will co-operate in any way unless forced?

    Hypothetically of course.

    If the mortgage was prior to 2009 you can inspect the deeds under S16 of the Conveyancing Act 1881. I'm afraid this is the limit of my knowledge and not particularly helpful.


  • #3
    selfbuildache
    Registered Users, Registered Users 2 Posts: 248 ✭✭selfbuildache


    LowKeyReturn; thanks for your reply.

    Hiring a solicitor (long term) is an expensive job, for which there just isn't the money. Getting some homework done beforehand might just help matters.

    Practically speaking, it does seem an easy exercise, and professional advice would agree, however this is not how it has turned out when approaching the bank.

    The removed partner has never made repayments and will not in the future. I'm not sure what you mean by the final, hypothetical, question?


  • #4
    CIARAN_BOYLE
    Registered Users, Registered Users 2 Posts: 14,599 ✭✭✭✭CIARAN_BOYLE


    The bank holds the deeds after giving the mortgage right? So the deeds are in their posession until someone pays off the mortgage. While the bank hold the deeds they can deny anyone premission to edit the deeds. At least that is how I understand things.


  • #5
    LowKeyReturn
    Closed Accounts Posts: 934 ✭✭✭LowKeyReturn


    Hypothetically if you can prove they never made payments to the property, they are not living there and there is no civil partnership or marriage won't equity intervene if she ever made a claim on the house?

    I might being too simplistic here - I suspect I probably am.


  • #6
    selfbuildache
    Registered Users, Registered Users 2 Posts: 248 ✭✭selfbuildache


    CIARAN_BOYLE wrote: »
    The bank holds the deeds after giving the mortgage right? So the deeds are in their posession until someone pays off the mortgage. While the bank hold the deeds they can deny anyone premission to edit the deeds. At least that is how I understand things.
    Hypothetically if you can prove they never made payments to the property, they are not living there and there is no civil partnership or marriage won't equity intervene if she ever made a claim on the house?

    It all seems obvious, doesn't it? (Not trying to be smart here.) Both of these scenarios have been checked and neither of the quotes here, actually seem to be true....


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  • #7
    Pat Mustard
    Registered Users, Registered Users 2 Posts: 9,554 ✭✭✭Pat Mustard


    LowKeyReturn wrote: »
    Hypothetically if you can prove they never made payments to the property, they are not living there and there is no civil partnership or marriage won't equity intervene if she ever made a claim on the house?

    I might being too simplistic here - I suspect I probably am.

    I recognise that writing style, I think!
    I'm sure I'll make a (much lower key) reappearance in the summer when life is not so hectic!

    Welcome back.


  • #8
    LowKeyReturn
    Closed Accounts Posts: 934 ✭✭✭LowKeyReturn


    Shhhh!


  • #9
    valleyoftheunos
    Closed Accounts Posts: 2,332 ✭✭✭valleyoftheunos


    Names aren't actually "taken off" deeds, what must happen is that the person seeking to leave must transfer their interest in the property to the remaining Person. This in itself is a very simple process.

    However as there is a mortgage involved the Bank has an interest int he property and they hold the Deeds. No transfer can take place without the deeds and so nothing can happen without the permission of the bank.


  • #10
    234
    Registered Users, Registered Users 2 Posts: 1,529 ✭✭✭234


    Also remember that even if one person is no longer a co-owner this doesn't mean they aren't liable for mortgage repayments. If the mortgage was signed jointly then the contractual obligation subsists even if the ownership of the security changes.


  • #11
    valleyoftheunos
    Closed Accounts Posts: 2,332 ✭✭✭valleyoftheunos


    234 wrote: »
    Also remember that even if one person is no longer a co-owner this doesn't mean they aren't liable for mortgage repayments. If the mortgage was signed jointly then the contractual obligation subsists even if the ownership of the security changes.

    Exactly, the person who gave away their half of the house would then effectively be an unsecured mortgagee to the bank which they would not allow.

    In this entirely hypothetical situation I would wonder if the remaining person would remortgage the home under their sole name as I would think that to be the only likely possible solution.


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  • #12
    Marcusm
    Registered Users, Registered Users 2 Posts: 10,768 ✭✭✭✭Marcusm


    If the property is registered, there is no issue of "deeds" being held by a bank but rather a charge being included against the property folio. It is always possible to transfer the beneficial interest of one party even where there is a mortgagee or other charge holder. This might take the form of a declaration of trust or similar technique and might not remove the name from the "deeds" or register but which will set out a path for that to happen once the mortgage or charge is extinguished. Likewise the departing partner might want an indemnity in respect of the bank seeking repayment of the loan in future. Without the bank's formal acquiescence it would not be possible to fully effect the changes but it might form an intermediate step to make the retaining partner comfortable that they owned/controlled the property. Such a structure could not be put in place without a good solicitor - it would take a deal of thinking and drafting which wouldnot be commonplace for a solicitor more used to simple conveyancing and similar matters.


  • #13
    Kosseegan
    Banned (with Prison Access) Posts: 987 ✭✭✭Kosseegan


    At the moment the bank have recourse to both borrowers as well as a charge on the property. Why should they weaken their security?
    To protect the remaining borrower all that is needed is a side agreement regarding any possible claim on the equity of the house when it is eventually sold or transferred.


  • #14
    Grolschevik
    Registered Users, Registered Users 2 Posts: 3,472 ✭✭✭Grolschevik


    The Mustard wrote: »
    I recognise that writing style, I think!



    Welcome back.

    The burgeoning post count would tend to support your hypothesis!


  • #15
    selfbuildache
    Registered Users, Registered Users 2 Posts: 248 ✭✭selfbuildache


    Many thanks for thoughts and opinions. It does seem impossible to have a name removed.

    Might a next-best-thing scenario be like this:
    Kosseegan wrote: »
    To protect the remaining borrower all that is needed is a side agreement regarding any possible claim on the equity of the house when it is eventually sold or transferred.
    But, apparently, a 'side agreement' like this would be wide open to challenge in the future??


  • #16
    LowKeyReturn
    Closed Accounts Posts: 934 ✭✭✭LowKeyReturn


    selfbuildache wrote: »
    Many thanks for thoughts and opinions. It does seem impossible to have a name removed.

    Might a next-best-thing scenario be like this:

    But, apparently, a 'side agreement' like this would be wide open to challenge in the future??

    Common law and equity are two parts of our legal system . Equity is the 'gloss' over the common law when something would be unfair. If no payment has been made by X and everything has been paid for by Y then Y is the beneficial owner of the property, although the common law may see things differently.

    You really need to chat to a solicitor. From what others have said and my very limited knowledge, I don't think this is as complicated as you think it is. I also realise solicitors are expensive but not as expensive as not engaging one in many circumstances.


  • #17
    valleyoftheunos
    Closed Accounts Posts: 2,332 ✭✭✭valleyoftheunos


    selfbuildache wrote: »
    Many thanks for thoughts and opinions. It does seem impossible to have a name removed.

    Might a next-best-thing scenario be like this:

    But, apparently, a 'side agreement' like this would be wide open to challenge in the future??

    It probably would be open to Challenge but that doesn't mean it's not workable.

    Both parties would need to be advised by independent solicitors and an indemnity is only as good as the person giving it. It could perhaps be described as the best option of a bad lot.


  • #18
    mickdw
    Registered Users, Registered Users 2 Posts: 23,812 ✭✭✭✭mickdw


    Bank want to keep both people liable for repayments. They would be mad to allow this change unless the remaining person very much qualifies on their own for a mortgage.


  • #19
    valleyoftheunos
    Closed Accounts Posts: 2,332 ✭✭✭valleyoftheunos


    mickdw wrote: »
    Bank want to keep both people liable for repayments. They would be mad to allow this change unless the remaining person very much qualifies on their own for a mortgage.

    The Bank's permission wouldn't be necessary as both people would remain liable for the mortgage but one of them would be indemnified by the other.

    Of course if the remaining party can't pay the mortgage in the first place then an indemnity form them is going to be worth feck all so it probably is not as good a solution as we had hoped.


  • #20
    selfbuildache
    Registered Users, Registered Users 2 Posts: 248 ✭✭selfbuildache


    Sorry for long reply. I thought one reply to all suggestions best.

    lowkeyreturn:
    If no payment has been made by X and everything has been paid for by Y then Y is the beneficial owner of the property, although the common law may see things differently.

    You really need to chat to a solicitor. From what others have said and my very limited knowledge, I don't think this is as complicated as you think it is. I also realise solicitors are expensive but not as expensive as not engaging one in many circumstances.

    Thanks for reply.
    Everything has been paid for by X, as above.
    Both parties have talked to solicitors. One visit each. (Money is very limited.) X's solicitor was very reluctant to go down a route of one party 'promising' the property to the other, because of future, legal challenges, as mentioned previously.
    So, lots of homework trying to be done by both parties, before returning to solicitors, again, to try and cut down on costs.
    Y's solicitor originally suggested the name withdrawal which sent both parties on this, long, route which seems to have been fruitless.
    valleyoftheunos wrote: »
    It could perhaps be described as the best option of a bad lot.
    This (indemnity) seems to be the best option from what I read here??

    mickdw
    Bank want to keep both people liable for repayments. They would be mad to allow this change unless the remaining person very much qualifies on their own for a mortgage.
    This is what all parties thought until Y solicitor suggested otherwise, X solicitor agreed when asked, as did original broker - but the bank disagreed and now it's open for discussion here:D

    Valleyoftheunos
    Of course if the remaining party can't pay the mortgage in the first place then an indemnity form them is going to be worth feck all so it probably is not as good a solution as we had hoped.
    X party is and has been paying the mortgage but does not qualify formally for a mortgage, alone.

    Discussion very much appreciated.
    Overall, it does seem that one name cannot be removed and that indemnity might be a 2nd best, in this kind of scenario?


  • #21
    valleyoftheunos
    Closed Accounts Posts: 2,332 ✭✭✭valleyoftheunos


    selfbuildache wrote: »
    Sorry for long reply. I thought one reply to all suggestions best.

    Valleyoftheunos
    X party is and has been paying the mortgage but does not qualify formally for a mortgage, alone.

    Discussion very much appreciated.
    Overall, it does seem that one name cannot be removed and that indemnity might be a 2nd best, in this kind of scenario?

    Sorry I was unclear, what I should have said is that if in the future X party is not able to pay the mortgage and the bank seek to get their money back then the indemnity from X will not be any good to Y as X will have no way of paying Y. For that reason an independent solicitor would not advise Y to go ahead with the side agreement and indemnity and that could have implications if it was to be challenged in the future.


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