Backdated Tenants in Common.

[Fluff16]

Hi I hope someone can advise please.

 

In the late 90's I was named on a joint loan with my then partner despite not working myself.

By 2003 the loan was defaulted on and I ended up with a CCJ as my then partner refused to acknowledge it.

 

As we both were joint tenants of the house we owned,

the CCJ was then set as a charging order in 2008

closely followed by an order for sale.

 

My partner at the time changed the agreement to tenants in common and backdated it to 2003

of which a copy they sent to the mortgage company.

 

They altered the share to mine being just 10% so that the equity would not cover the charge

and prevent an order for sale being carried it.

It was an abusive and controlling relationship on an epic scale.

 

The mortgage companies copy shows it as 2003

but the Land Registry shows it as 2008 at the same time of the court dates.

 

We have now split and they are demanding that they own 90%

despite it being obvious that it was a manufactured situation

and at no point was it ever intended that I give up my share of the house

as it was purchased as a family home.

 

I can see now that it was abuse

and it was done deliberately to gain even more control.

I have 2 copies of the Land Registry showing just months apart showing what was done.

 

A solicitor has told me I'm going to have to fight it in court and have trouble proving it.

This was before I found the copies showing that it was done to fool a court.

 

From what I've read it's not possible to backdate it as they did and so it is invalid

 

Any advice please as I really am at my wits end but glad to be away from such a vile person.

 

The solicitor also said that as it was a joint loan and then resulted in a charging order on the joint property that it should never have happened and it should have been in both names?

The legal advice I had at the time said that it could.

 

It's all a mess at the moment as I went to one solicitor a few months ago that told me to sit tight as long as they were paying the mortgage.

 

 

Last week I had a letter from them acting for him and saying that they were not prepared to pay the mortgage and it would either be repossessed or be forced for sale at 10/90% at my expense unless I agreed to sell.

 

Yet the same solicitor had told me that despite not being married and the change of agreement I would get 50% in beneficial interest and 20% for the children.

 

 

I just don't know who is right

 

 

the recent solicitor I have seen said that wasn't true and I was entitled to nothing

despite having children and being in a 25 year relationship that I contributed to and they took every penny when they left

.

[martin2006]

Hi fluff, sorry to read of your situation.

Whilst i have no knowledge of such areas, there are teammembers who know this area and will jump in asap

[ThedaBara]

Finding this thread really difficult to understand..

 

. if it's a joint debt on a joint mortgage,

then you have a charge on your property, rather than a form K restriction,

(where the non debtor is entitled to 50% of any equity after the property is sold...)

Are you and your partner paying equal amounts towards the mortgage?

 

You say the OFS was in 2008... what has happened since then?

Did the creditors not follow through with their threat?

 

You can't turn joint ownership into tenants in common retrospectively as you say your partner has done,

although I believe once a charge is placed on a jointly owned property,

the status automatically changes to tenants in common when the charge is made final.

 

What your partner has done is unlawful..

..it was a joint debt which he has defaulted on

and by his actions he seeks to increase his own share of any equity whilst depriving you of your 50%...

 

I believe repossession is better than an OFS as your lender will return any equity to you rather than to your creditors.... TB

[steampowered]

You refer to a mortgage. If there was a mortgage registered against the property, a restriction would have been entered which prevents any transfer of an interest in the property without the bank's consent unless the mortgage has been paid off and discharged. So it wouldn't have been possible for them to reduce your interest as I doubt the bank would have given consent. Do you know if the mortgage is still in place?

 

Leaving the mortgage aside, it sounds like there is also a charging order. When a charging order is issued, a restriction would usually be placed on the land register which prevents any transfer of an interest in the property from being registered without the person holding the charging order being notified. They couldn't just randomly change your share to 10% without going through the creditor. If they tried to do that, I doubt it would prevent an order for sale because (1) the charging order would take priority over a transfer which was not registered until after the charging order was registered (i.e. their share would still be subject to the charging order - it is the date of registration by the land registry that determines who wins here, not the date written on the document submitted to the land registry), and (2) I am sure the court would see right through these shenanigans it if an order for sale was applied for.

 

Even if there was no mortgage or charging order involved, I'm doubtful that the land registry would accept a backdated transfer from 2008 to 2003.

 

If you would like to receive specific help, it would be helpful if you could give us some specific details about what has happened in terms of the legal documentation. The key thing would be for you to tell us what the land registry entry for the property actually says. The easiest way of doing this would be for you to tell us word-for-word (removing personal details) what the proprietorship register section of your land registry entry actually says.

 

If you would like to receive specific help, it would be helpful if you could tell us a bit more about how this alleged transfer down to 10% took place. In order for a transfer of an interest in land to happen there would need to be a signed document. Are you telling us that you were pressured into signing something (if so what did you sign)? Or that you did agree to this transfer to avoid the charging order and now want to back out of it (if so what did you sign)? Or that they applied to the land registry without your consent (which may mean they used a forged signature on the land registry transfer form)?

[Fluff16]

Trying to think how to explain best.

 

Original mortgage taken out in 1995. After the CCJ and then threatened charging order we remortgaged and iI only agreed to that on condition it was paid off before it got that far. He took the money and kept it from me so the charging order was placed on my share of the property.

 

In 2008 they did get a charging order against me and and just prior to it going to court as an order for sale I signed an agreement to say i just had 10% share dating back to 2003. The court would not have accepted a recent change so he backdated it although it was all done and registered in 2008. I have all the emails and documents he sent pestering the mortgage company and blaming others for them not having the original document from 2003. They wouldn't have as it didn't exist.

 

I have an original email for the paperwork he set up..RX? It was all just backdated to make it look as though it was agreed.

 

Why would I give up my share? It was just control and I was told it was just until it was sorted.

The Land Registry have a copy registered in 2008 and backdated to 2003. Everyone got backdated copies and he blamed the financial adviser for not doing it.

 

So yes I was pressured into signing and it's been an abusive relationship.

Edited July 13, 2016 by honeybee13
Paras.

[Fluff16]

He has also stopped paying the mortgage and I just don't know if I should pay it or leave it to be repossessed. He is abusive and has asked now for 30k tonight, via our daughter, and i can keep the house. Not sure how he figures that out. It's worth about 100k with around 42k owing plus the charging order. and I won't be able do take out a new mortgage on it.

 

At the moment I think paying the mortgage and selling when I'm ready will be the best option as the fees will just be horrendous and I just don't need the stress. I think I should wait until such time he goes through the proper channels instead of making threats or asking other people to tell me.

 

Any advice is appreciated.

Edited July 13, 2016 by honeybee13
Paras.

[steampowered]

Hello, thanks for trying to clarify. I am sorry but there are still a few bits of your story which don't make sense - I've explained the reasons below. There must be some aspect of your description which is mistaken from a technical legal perspective. For example it sounds like the 'mortgage' you are describing might have actually been an unsecured personal loan?

 

What would be really helpful is if you are able to download the land register for this property from the land registry website, and tell us exactly what is written in the 'proprietorship register' and 'charges register', without giving personal identifying details. This will help enormously to clarify the situation.

 

Original mortgageicon taken out in 1995. After the CCJ and then threatened charging order we remortgaged and iI only agreed to that on condition it was paid off before it got that far. He took the money and kept it from me so the charging order was placed on my share of the property.

This I do not understand. There would be no need for a lender which has a mortgage to take out a charging order. A mortgage is already secured against the property and has higher priority than a charging order does. Mortgage es don't ask for charging orders, they go straight to seeking a repossession order.

 

In 2008 they did get a charging order against me and and just prior to it going to court as an order for sale I signed an agreement to say i just had 10% share dating back to 2003. The court would not have accepted a recent change so he backdated it although it was all done and registered in 2008.

When a mortgage is registered, a restriction goes on the land registry which says that no transfer can be registered without the mortgagee's consent. Even if you and your ex-partner had both signed the land registry documents, I don't see how he could register a transfer of any part of your share while a mortgage was outstanding.

 

It would also be pointless to do this to try and frustrate an order for sale, I am sure the court would have seen right through it (although the request for an order for sale may well have been halted by the lender for other reasons, for example if you/he started paying the debt).

 

I have all the emails and documents he sent pestering the mortgageicon company and blaming others for them not having the original document from 2003. They wouldn't have as it didn't exist.

It sounds like we are dealing with registered property here. All the relevant details are held by the land registry. He wouldn't have needed any original documents or deeds from the mortgagee to do anything with the property - original documents are only required when you are dealing with unregistered property which hasn't been sold or mortgaged for decades.

 

He has also stopped paying the mortgageicon and I just don't know if I should pay it or leave it to be repossessed. He is abusive and has asked now for 30k tonight, via our daughter, and i can keep the house. Not sure how he figures that out. It's worth about 100k with around 42k owing plus the charging order. and I won't be able do take out a new mortgageicon on it.

I don't think you should do anything without getting proper legal advice. You have no assurance that he will actually let you keep the house even if you paid the money. A contract for the transfer of land is not legally binding unless it meets proper formalities and is in writing - under the Law of Property Act 1925 you are not able to enter into verbal contracts for the transfer of an interest in land.

 

You may well be able to challenge what has gone before and take him to task, to put yourself in a better position than you are now. Although I don't think we can give you much guidance on here unless we can get a better understanding of what has actually happened.

[Fluff16]

The charging order was for a joint personal loan. It wasn't paid and they pursued me only and were granted a charging order on the house.

The charging order is registered on the title, so is the mortgage company and it also has the appropriate wording to show that it was changed from joint tenancy to tenancy in common.

[Fluff16]

The mortgage is entirely separate. i agreed to a remortgage to avoid the charging order and for the debt to be paid off. He took the money and didn't do that.

He backdated the RX document to 2003 and sent copies to the land registry and the mortgage company in 2008 saying differing things to both of them and that they should have had a copy given by the financial adviser and he hadn't done it or that they must have lost the copy.

I have been for legal help but they just tell me that I signed it. I am hitting a brick wall that it has been years of abuse and he controlled everything with threats, violence and taking the finances. Just makes you want to give up and that the law doesn't work because they just don't take the time to look or listen.

[steampowered]

Thanks, that helps.

 

Just so that you are aware, a mortgage and a charging order are not the same thing. While they are both secured against property, mortgages come with a bundle of restrictions that don't apply to charging orders. Also, the options available to the holder of a mortgage are different to the options available to the holder of a charging order. That is why it is important to be specific and legally accurate about this.

 

I am still confused about the remortgage. If the property was mortgaged, he wouldn't have been able to register any changes with the land registry. What does the land register entry for your property say about your and his % ownership of the property?

 

Aside from the above, it sounds like you did sign a document agreeing to transfer your interest in the property. If so, there is a piece of law called 'undue influence' that may allow you to have the document set aside if it can be proved that you were dependent on your partner and that the document was signed as a result of undue influence (for example specific threats) made by him, but I suspect you'd need to go to court for that.

 

If you did leave the house to be repossessed (repossession would apply in the case of an application by a mortgagee) or subject to an order for sale (not the same thing as repossession - this would apply in the case of an application by the holder of a charging order), then I'm not entirely sure what would happen to the leftover equity ... at that stage there may need to be a fight over the equity in court.

[Fluff16]

There is nothing on the title showing the share ,

just that it was registered in 2008 and they have said they received the document then

and several emails insisting they should have had it it in 2003.

 

We remortgaged in 2003, that was all above board.

But with the intention that the CCJ was paid off and not to have the charging order.

He put the money in his account and avoided any questions asked about it.

 

 

It was an controlling and abusive relationship and the person isn't who I thought they were.

It wasn't just me and it seems he is a pathological liar and lives in a fantasy world for his own gain.

 

I know the differences of mortgages, remortgages and charging orders.

It's the details that pose the problem but guess I can get through it.

 

If he is stupid enough to ask for 30k, via our eldest daughter, and he will let me have the house

then he is deluded as to how things work in the real world.

 

 

Today i received a letter about emails sent to the mortgage company.

I called them and they read out an email he sent saying he wasn't happy that I was now paying the mortgage

and was demanding to know every detail and threatening them with rubbish as he wants it to be repossessed.

 

As long as I pay the mortgage

the only thing he can do is go to court to order a sale and even then neither he or a judge can order it to be bought.

 

I'm a survivor and a fighter.

.so will get through this and look after the children whatever he throws at me.

 

 

I can't even begin to say what he has done in the past and the lengths he has gone to for control everyone he ever had in his life.

Edited July 21, 2016 by Fluff16

[BazzaS]

 

 

Aside from the above, it sounds like you did sign a document agreeing to transfer your interest in the property. If so, there is a piece of law called 'undue influence' that may allow you to have the document set aside if it can be proved that you were dependent on your partner and that the document was signed as a result of undue influence (for example specific threats) made by him, but I suspect you'd need to go to court for that.

 

How would an application for set aside (based on undue influence / duress) interact with "those seeking equity must come with clean hands" ; ('equity' as in asking the court for fairness, an equitable solution..... Rather then the "equity sum in the property").

 

Would the duress / undue influence aspect override the "it was done to falsely frustrate a charging order" aspect?

[steampowered]

How would an application for set aside (based on undue influence / duress) interact with "those seeking equity must come with clean hands" ; ('equity' as in asking the court for fairness, an equitable solution..... Rather then the "equity sum in the property").

 

Would the duress / undue influence aspect override the "it was done to falsely frustrate a charging order" aspect?

 

My understanding is that a charging order registered prior to the transfer being registered would take priority.

 

Today i received a lettericon about emails sent to the mortgageicon company.

I called them and they read out an email he sent saying he wasn't happy that I was now paying the mortgageicon

and was demanding to know every detail and threatening them with rubbish as he wants it to be repossessed.

Absolutely, the mortgage company can't ask for repossession if the mortgage is being paid (nor would they want to).

[Fluff16]

Just as a thought, how much would it cost him to get an order for sale and go through court if he pursued that line? I'm thinking it would be at least £5k for how complex it is if he involved a solicitor that would take his case on. I know he could offset that against the sale of the house.

Would a judge have the power to say how, when and for much it should be sold? Or who should pay the upfront fees to do it?

I think I'm needlessly worrying and should sit it out as long as I'm paying the mortgage. If he went to court tomorrow I think it would take at least 2 years to get a sale.

[Fluff16]

Also I don't ever want to see him again or speak to him directly. Will I be able to do that and would the court allow it? I am frightened of him as he is so unpredictable and I know what has happened in the past.

[steampowered]

We remortgaged in 2003, that was all above board.

This is the part that confuses me. A mortgage lender would not typically lend while a charging order was still in place. Furthermore, you would not have been able to register a transfer of interest in the property (backdated or not) while a mortgage was entered against the property.

 

It may be worth going to speak with a different solicitor if the position re: ownership is not clear.

 

Just as a thought, how much would it cost him to get an order for sale and go through court if he pursued that line? I'm thinking it would be at least £5k for how complex it is if he involved a solicitor that would take his case on. I know he could offset that against the sale of the house.

 

I imagine it would cost him a lot more than 5k to get a solicitor to see him through the order for sale process.

 

Would a judge have the power to say how, when and for much it should be sold? Or who should pay the upfront fees to do it?

I think I'm needlessly worrying and should sit it out as long as I'm paying the mortgage. If he went to court tomorrow I think it would take at least 2 years to get a sale.

An order for sale would typically require the house to be listed through an agent and sold for market value, rather than specifying an exact price. I imagine it would take some type for an order for sale to be obtained (if the application was accepted) but very difficult to say how long.

 

Also I don't ever want to see him again or speak to him directly. Will I be able to do that and would the court allow it? I am frightened of him as he is so unpredictable and I know what has happened in the past.

If litigation were initiated by either side, written correspondence would need to be exchanged. You could of course (and for a case like this probably should) use a solicitor for that.

 

You would have to give detailed, specific evidence in court (which you would be cross-examined on) if you wanted to allege undue influence in relation to the transfer or anything like that. It would be his solicitor/barrister doing the cross-examining rather than him though.

[Fluff16]

Thanks for that.

 

When the remortgage happened in 2003 the debt was still at CCJ stage with them threatening a charging order. The charging order happened after, in 2008, followed quickly by them trying to get an order for sale which is when the tenancy agreement was backdated.

Some of the money from the remortgage was supposed to pay off the CCJ as I knew they would eventually go for a charging order, but he obviously didn't pay.

I was completely reliant on him as he was working away a lot of the time or kept changing jobs while I was looking after our children and my disabled elderly parents on my own.

[Fluff16]

As far as I've been told and have found out, a tenancy agreement can be changed at anytime to tenants in common from joint without the mortgage company having any say as it only divides the equity and has no bearing on how the mortgage is paid as it still remains as joint and several liability regardless of the percentage held.

[Fluff16]

At the moment he is harassing the mortgage company and trying to say no fees should be added at all as I got back all the fees charged years ago because they screwed up taking payments.

 

He mistakenly seems to think that ruling means they can't charge any fees if he stops paying them or apply any fees at all if the house is sold and the mortgage is repaid early.

 

At the moment there are only fees of £60..one is for £35 as he cancelled the direct debit and it was returned and the other is for £25 as I had to get copies of statements from them for benefit and legal purposes. I fully intend to keep paying the mortgage and the company have accepted that and no further fees will be added.

 

I'm sure he thought the process would be easy and that the house would be repossessed without him paying any charges or deal with the sale.

 

He is sadly deluded and also didn't take into account my ability to pay. Given the circumstances I think it highly unlikely that he would be willing to pay anything on a gamble that he could get an order for sale, and when he finds out the true cost of what the fees will be if I stop paying then that will bring a tear to his eye.

 

By the time everything is paid and if the house were to sell tomorrow we would be lucky to have £35,000 from it. If the mortgage goes unpaid and it takes 2 years to sell then I figure most of that equity would be gone anyway with charges and legal fees.

Edited July 22, 2016 by honeybee13
Paras.

[Fluff16]

I also have a question about if I can take him to the small claims court for half of the charging order value? It was all for a joint debt and a joint account that he would not address. Would that be an easier option than trying to sort that part out later? I'm thinking it would help as it would put all the paperwork on the table with an outcome before it went to a higher level if it did get to an order for sale?

[Fluff16]

What I don't get is that a solicitor told me it should never have happened. A joint debt charged on a jointly owned property but only done in my name? I'm wondering now if he submitted anything or told the company something that led to that. Thinking back he only ever said he had an interest in the property and never admitted that he was named on the original debts, I have all the paperwork to prove it from my side and copies of all the agreements and letter but no idea if he sent anything to them.

 

So far I have spoken to 5 different legal services on 9 different occasions and they all differ immensely and of those several were paid for. That's apart from the solicitors that dealt with everything when the charging order was placed and the advice then. It's frustrating that each one tells me the other is wrong!

Edited July 23, 2016 by honeybee13
Paras.

[Fluff16]

I guess it's just so complicated.

 

With the order for sale falling through the judge instructed that payments should made each month. A couple of months into that a letter arrived from the companies solicitor saying they were no longer acting for them.

 

I tried repeatedly to make a payment and they were all refused by the company and they even tried to take out a CCJ for the same debt they already had a charging order on a few months later.

 

Last time I spoke to them, 2008, they refused payment and couldn't give me any details of the account or who to get in touch with. They didn't know the order existed.

Have heard nothing since from them.

Edited July 23, 2016 by honeybee13
Paras.

[ThedaBara]

As far as I've been told and have found out, a tenancy agreement can be changed at anytime to tenants in common from joint without the mortgage company having any say as it only divides the equity and has no bearing on how the mortgage is paid as it still remains as joint and several liability regardless of the percentage held.

 

Not 100% sure, but I believe a joint mortgage automatically reverts to a tenants in common situation once a charge has been put on the property. TB

[Fluff16]

Maybe but just want to clarify how to sort out a joint debt that is only on my equity, and what was backdated But thanks.

[ThedaBara]

It's a joint debt but that the creditor only charged you? That would show as a standard form K restriction, but if you and your partner were charged jointly, it would mean there's a full charge on the property… I'm still a bit confused… Do you know what type of charging order it is? TB