caution on property

[amatnic]

I have to convert my loft into a room to accommodate my parents as one is ill. I have found out that my estranged husband has put on a caution on 'my' property - I bought the house in order to escape from him which is solely on my name with mother having an interest in it as she gave me the deposit. I am not going to sell the house - which is the sole interest my estranged husband has - but am wanting just to remortgage. Is there any way that the remortgage can go ahead or does it need to be removed. This is an urgent question and I would truly appreciate a response as soon as possible please by any body who can provide me with information.

[Loosehead]

Not sure what you mean by a caution. Do you mean a charge? Ie do you owe him some money? If so a potential lender would take into account all the current charges before deciding to lend.

[amatnic]

It is not a charge but a 'matrimonial' caution. My estranged believes he is entitled to a share bearing in mind we were not together at the time when it was bought and basically the caution is on there to protect his interest because according to him it is a 'matrimonial' home. Is he correct? He lived at the property for 11 months during a reconciliation period in June 1999-May 2000 and only contributed to the kitchen and one radiator, and again when he was homeless in 2002 for three months. So the original question still is can I obtain a remortgage even if there is 'matrimonial caution' registered on my property

[Loosehead]

Sorry, haven't come across this situation before. I suppose you can just ask a potential lender and see if they run a mile.

[MustafaTickl]

In principle there is no reason why you should not be able to remortgage. The mortgage will become the first charge on the property and only after this has been paid off will the matrimonial caution apply to the residue.

However, there is a problem. Remortgaging under your circumstances can be viewed as asset stripping. Your husband will be notified of your intention to remortgage and his written permission will be required before it can go ahead. Should he think that you are remortgaging simply to reduce the amount of cash that would be available to divide up if things were left as they are at the moment then he may well refuse and then you will either have to stay as you are or sell up, pay him off and start again.

The only thing to do is to tell your lender the whole story and go ahead with the attempt to remortgage and see what happens.

[amatnic]

Thank you mustafa TickI, very informative. Would you happen to know why I would need to ask his permission to remortgage when his name is not on my deeds?

[MustafaTickl]

The need for his signature arises from the rules of the matrimonial caution. The Land Registry have been persuaded that your husband has some sort of interest in the property, that is why the Land Registrar ( a senior specialist solicitor) has placed the caution on the Register of your property. The purpose of the caution is to alert everyone to the fact that your husbands claim must be satisfied before the property or any part of it can be disposed of. It therefore follows that all proposed changes to the status of the property (remortgaging being one) must have your husband's agreement (in case you make off with the money or what is proposed devalues the equity in the property and the amount of his claim cannot be met) and the Land Registry rules require his agreement to be in writing and witnessed. The Land Registry will not allow the Register to be altered without his agreement, which therefore totally blocks you on your own from remortgaging, selling the whole or part, etc. Hope this is clear, say if not and I will re-phrase.

[amatnic]

thank you again. I have written to his solicitors re trying to come to an amicable solution but have received a reply to say that he is no longer a client of their's as he did not respond to any subsequent letters they sent him following a reply from my solicitor and therefore his case has been archived. If my solicitor makes contact with him and he fails to respond what can I do? Is there any way he can be forced to respond, seek a solicitor etc in order that this cautrion can be removed, can I take him to Court for instance if he fails to respond?

[Nether Edge]

HM Land Registry may be able to serve him with a Notice, formally demanding evidence of his entitlement- if he does not respond, the caution will be "warned-off" and removed.

[MustafaTickl]

The problem with non-answering/unlocatable owners of charges is that they still own the charge even though they do not answer or are not locatable. It is somewhat similar to the fact that I can put my car in my garage and forget about it. I do not have to answer to anybody about it, I can go to an unknown desert island with no communication whatsoever and and I do not lose ownership of the car just because I do not answer or can't be located. Also, like my car, your charge is a valuable item which your husband can sell or leave to be inherited through a will.

Because of this you will have the utmost difficulty in persuading a court to dispossess him of his valuable item simply because he does not answer or is unlocatable. The Land Registry will do nothing whatsoever without a court Order. Because of the possibility of asset stripping I doubt very much whether you would have any success in an application to a court to waive the requirement for your husband's written agreement to a mortgage for a proposed loft conversion (you might wish to give this argument further thought to make it sound right - ill elderly people have difficulty in managing one flight of stairs, let alone two).

If there is no hope of a reconciliation then your best solution is divorce. In the division of assets the court will say how much your husband is to receive from the property. If then he does not sign the necessary documents a court will appoint a Judge to sign on his behalf. And then you are free !!

[amatnic]

thank you for all you advice, you have been very helpful. In terms of the ill person being up in the loft, No, they would stay on the bottom floor and everybody else in the house would move up.

[amatnic]

I like the example you give re. your car but that would be your car that you bought so you would be entitled to do whatever you wanted with it, but in my case I bought the house on my own with my mum, with no help whatsoever from him, in an attempt to escape from him so why did he have the right to put a charge on my property. I'm not saying that he should not be entitled to something, well actually I am seeing that he didnt contribute, but we wont go into that, but I need to modify my house why is the law giving him the right to stop me from doing that. Every month I pay the mortgage and everything else to do with the house on my own so why. Talking about it is getting me angry so I'll stop there but do you understand what I mean?

[MustafaTickl]

It is simply and solely the unfortunate consequence of being married to him. The affairs of married people are assumed to be intertwined, so it is plausible to say on split-up I have money in that house which I want back. It was only necessary for his solicitor to prove to the Registry that you were married for the charge to be entered, nothing else. The current presumption is that each is entitled to 50/50 after mortgage and costs have been paid, and it is from here that a court starts. You will have to prove that the real split should be 95/5, if not it springs back to 50/50. A loft conversion can alter the value of the property up or down. If you do it before you have paid him off and it increases the value of your property you are quite likely to find yourself one day splitting the increase in value 50/50 with him. In feeling that there is no right on his side you must always remember that if shove comes to push a court is no more than a stage, the law is an odd set of rules and not justice, judges are most peculiar and that a courtroom full of liars is the norm. Try to settle out of court before you do the conversion and in doing so adopt the motto "Negotiate for the best and accept the rest".

[jaycee401]

Hi amatnic
I have a similar problem to yours. My ex partner transfered his property to me nearly 2 yrs ago. I paid off his existing mortgage (as that is all he wanted from me (I even have a letter off him to my mortgage lender stating how much he was selling it me for (cheaper than the value of the house).
It was all done legally. Then 9 months later he decided he wanted some money off me so he has tried to put a charge on my property. I am fighting it through solicitors with the Land Registry. He is denying signing the letter of sale and his solicitor is saying if I do not agree that it is ME who signed it then they will have to get it analyised by a handwriting expert (I have no objection to that). His sol has just done his statement of case and submitted it to the LR (and we have had a letter back from the LR saying his statement was all wrong - so he has to resubmit it. His sol is talking thru his a...! Once this is resubmitted my sol can the submit my statement.
I know exactly how you feel, cos just like you I bought it and I have been paying MY mortgage for the last 2yrs and yet he thinks he can just come along and claim some of it. Aparently even if the LR say he is entitled to some they cannot say how much so he will then have to take me to court - how much that will cost I dont know. Hopefully when they see all the evidence I have to support my case they will take the charge off. Have you been in touch with the LR?

[amatnic]

Hi Jaycee401,
For a while I felt all alone in this situation. Yes I did contact LR and they gave me some sound advice hence me visiting my sols today.
You know what is so upsetting, is that the law seems to protect the ones that falsifes the facts. He put me in so much debt (gambler); I received eviction letters, cutoff letters (he was using the money for debts for his gambling habit); he stole all my savings.
I pleaded with my parents to help me get away and so bought the house as a 'safe-house' for my child and I (physically abused), yet 'my' house is referred to as a 'matrimonial' house. As far as I am concerned 'matrimonial' means togetherness. He had a child with someone else during our marriage and he is claiming off my property so that he can support his 'love' child. (Would they refer this child as a 'matrimonial' child then). Jaycee401 I'm so angry.
Every month for the last 9 years I have struggled to keep up with everything (single parent), what did he contribute? Where is the justice in this country. So basically I should have stayed in the council house and waited to be put in a refugee, (tax payers money); I should have stayed for him to continue phsyically abusing me (calling 999 services - taxpayers money).
Jaycee401 good luck with your proceedings.

[jaycee401]

hi amatnic
this is all so wrong. whether yours is different because you were married i dont know. apparently if the LR agree that the charge can stay on the property he will then have to take me to court to see how much he can get out off me. i suppose if he wins the n i would have to pay the court fees. but we were not married and i have a letter from him stating he was selling it me for x amount. what more do you have to do? i thought i had done it all fair and square. the law really is an ass. i will fight him all the way, at lease i have lloads of evidence and my solicitor is brill, he has nothing!!! Good luck! fight it all the way.

[jaycee401]

amatnic, how are things going?

[amatnic]

Hi jaycee401, thanx for asking but its over and done with now. I had to pay him out and it really upset me to know that he contributed jack and received x. What he received though will finish very quickly as he has a habit. I'm strong and have moved on and am much happier and healthier for it. How are you getting on?

[jaycee401]

hi amatnic, sorry only just seen yr reply. Glad that you are getting on with your life. So am I, but im still waiting to hear the outcome of the land reg tribual back in March. apparently it can take months for the Adjudicator to make his decision. I will just be so glad when it is all over and then I can wipe my horrid abusive alcoholic gamboling ex out of my life. It is so wrong that you had to pay your ex something when it was your property. That will probably be the same outcome for me-i will let you know. Your ex sounds very much like mine!! and your right the law seems to be on their side. He stood in that witness box and swore on oath and told nothing but lies. I just hope the Adjudicator could tell he was lying. My Barrister did a good job and caught him out a couple of times. Good luck for the future.

[larkfield]

Just fight the caution off. First give up your job, then plead poverty and get legal aid. Find a vicious solicitor, for example Hodge Jones & Allen in London. With the benefit of legal you can fight the other person into oblivion and even ask for costs against them. If they don't have legal aid they will be ruined. This is what my son's ex did with him, only she was the one who put the caution on and he was the one trying to fight it off honourably. She was a karate black belt but arrived in court leaning on her solicitor's arm looking frail and ill. She stripped him of everything including his health.