Your queries answered
QIn 2007, I bought my present residence in partnership with my then fiance. The house cost €391,000 of which I paid €100,000 cash and he paid nothing. On this basis the ownership was divided 5/8s for me and 3/8s for him. The balance of the purchase price was financed by a mortgage. I paid €150 more per month towards the mortgage as I was the bigger earner. He paid his share for two years approximately before we split up. He has since emigrated and has not contributed in any way. He has indicated verbally that he has no further interest in the house.
The bank refused my application to have his name removed from the mortgage agreement and title deeds despite being fully aware that he has not contributed in more than three years. I was told by the bank that the preference is to have two names on a mortgage as it is less of a risk for them – despite the fact I haven’t missed one payment in this time or asked for any restructuring.
I feel that if I sell the house he would be entitled to 3/8s, assuming there is no negative equity (although there is at present). Is there any action I can take to protect my position? Does the fact that he has emigrated pose a potential problem when documents need to be signed?
AThis is a very complicated and, unfortunately, not uncommon situation. Whether you are in a couple which was formerly married, engaged or cohabiting, the fact is that when both of you take out a mortgage loan, then you are both jointly and each severally liable for the full loan balance.
Where a bank indicates that it prefers to have two mortgagors, it is simply reserving its right to recover against both of you. Your ex-fiance may not have any assets within the jurisdiction now, but that may change in the future.
Where two people own a property, they may own it as “joint tenants” or as “tenants in common” in certain shares. Where a property is “co-owned”, a co-ownership agreement may be executed by the parties to govern dealings with the property if the relationship breaks down. You should ask your solicitor if such an agreement exists.
In addition, either party may apply to court (just like a married person) to determine any question between them as to ownership or possession of property. You should immediately seek legal advice on the options you have (or your ex-fiance may have) under family law statutes, as time limits apply.
Unfortunately, you cannot force the bank to agree to remove your ex-fiance from the mortgage and any attempt by the two of you to change the title to the property from both names to your sole name might be viewed as an event of default by the bank. This might result in the bank calling in your loan, or it might be grounds for removing tracker mortgage rates, if you have one.
So unless you (both) have the means to repay the mortgage in full, or unless you can remortgage the property with another bank in your sole name, the status quo will remain. You should keep a detailed and vouched record of all expenditure incurred by you in relation to the property, whether by way of mortgage repayments, insurance or maintenance. You might however, consider asking your ex-fiance to enter into a contract with you which would document his waiver of any rights in the property in return for you undertaking full responsibility for the mortgage. Neither party should sign such an agreement without the benefit of legal advice.
Julie Fitzgerald is an associate solicitor with WhitneyMoore
QI am on the board of the owners’ management committee of a multi-unit complex in north Dublin. The common areas have been handed over and we want to appoint a new managing agent.
However, we are having significant difficulties in securing a lot of the documentation from the incumbent agent and the developer and are concerned that this may not happen once we appoint a new agent. Is there anything we can do? Is there some point in the legislation that requires the agent to do so?
AI will assume that you are on the board of the owners’ management company and not a committee as the difference in legal standing between the two would greatly reduce your ability to involve yourself in such matters.
According to the Multi-Unit Developments Act 2011, where transfers of the common areas to the management company have not occurred since April 1st, 2011, then the developer is required to furnish the particulars of Schedule III to the OMC – such as stamped and registered counterpart leases for each OMC member, test records of drainage, safety files, warranties and manuals relating to plant and machinery, contracts, development and systems drawings and confirmation that the development has been built in accordance with the relevant legislation – among other criteria.
If the documents are not forthcoming some detective work will be necessary and you may consider appointing a professional to undertake an audit of the various items involved.
I would recommend that you seek legal advice on this matter while you have the opportunity to negotiate with the incumbent agent.
If it is at all possible, try to ensure an amicable relationship with the incumbent agent before the transfer.
Paul Huberman is a member of the Society of Chartered Surveyors Ireland, scsi.ie
QI live in an unfinished estate outside Dublin. Do you think that it is it likely that I will have to pay the property tax next year?
AThose with a home in certain unfinished developments are not liable for the € 100 household charge. You will probably be aware if you fall into this category.The website householdcharge.ie, lists four categories of unfinished developments which are:
1The development is still being actively completed by the developer;
2A receiver has been appointed;
3A receiver has not been appointed and the developer is still in place but effectively inactive;
4The development has been effectively abandoned and is posing serious problems for residents.
Only categories three and four unfinished housing estates qualify for the waiver and the list of these estates is on the website. You still need to register your property, and apply for the waiver. The Minister for Finance, Michael Noonan, is set to announce the details of the property tax in the Budget. If you fall into category three or four there is a possibility that you qualify for a waiver on the “full” property tax, due to be introduced next year but you will have to wait until the Budget to find out.
Ed Carey is a chartered surveyor and chair of the residential property professional group of the Society of Chartered Surveyors
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Advice given is general and individual advice should always be sought