mortgage conditions

etteloc59

I am named on a mortgage with my husband but not on the deeds of the property, I have just come across papers from the bank and in additional conditions, it states that the mortgage and 'title' be in both names, we are now separating and and there is major hassle over property, does anyone know where I stand with this, have I a case against the solicitor or the bank as their own legal team did not check that , that condition was'nt met1

Peregrinus

The mortgage is basically a loan. If you are named in the mortgage documents, you are jointly liable (with your husband) for the loan. Presumably this is what you understood and intended at the time, so I don't see that you have any greivance there, or any remedy against anyone.

The fact that your name is not on the title of the property is disturbing, however. I assume that the mortgage was taken out to buy the property, and on the basis that you were jointly providing the purchase price (by borrowing) the expectation would be that you would jointly own the property. You may well have a case against the solicitor who acted for you and your husband in the purchase of the property.

But the question is, what have you lost? Now that you're separating, the property is in play anyway, regardless of whose name is on the title. If you can get the court to deal with this property on the basis that you are treated as if you were joint owners (because of the joint financing) then the error in the title will not cause a problem.

Talk to the solicitor who is acting for you in relation to the separation (who should not be the solicitor who acted in the purchase of the property) and see that he understands that your position in this case is that you want to be treated as a co-owner of the property. If you can get your husband to agree separation terms on that basis (or get a court to make financial orders on that basis) then you have no problem. If your husband or the court won't accept this and you end up worse off as a result, it's time to consider whether you have a case against the first solicitors.

etteloc59

I understand this, but it has just come to my attention that it was a pre-drawdown requirement in the mortgage offer contract, so the solicitor did not do it and then the bank did not insist on it and it is their own condition that has not been fullfilled, so to me both the solicitor and the bank are in the the wrong and the contract is null and void? Am I wrong in thinking this?

amdublin

No.

Peregrinus

You are wrong in thinking this. The contract has been executed to the extent that the loan has been drawn down. You've had the money. There is no way you can walk away without repaying it even if you successfully argue that, strictly speaking, you shouldn't have been given it.

What this error gives you is a claim to be entitled to the house, despite the fact that your name isn't on the title. It doesn't give you a claim to have no obligation to repay the loan, despite the fact that your name is on the loan agreement.

seamus

Further to what Peregrinus mentions, trying to walk away from the mortgage may complicate things further; if the bank decides to go for a judgement against you, you will find that you have no collateral to surrender and you may find yourself paying back a large amount of cash for a very long time, while your former husband holds onto the house and only has half a mortgage to pay on it.

Step 1 is getting your solicitor to get your name on the deeds of the property.

In terms of "is the contract null and void", the answer is "possibly". But money has been handed over. If the contract is voided, you have to give that money back. But since all that money is tied up in the property, this leaves you back where you are.

etteloc59

ok, thank s for that

Pat Mustard

etteloc59 wrote: »

I am named on a mortgage with my husband but not on the deeds of the property, I have just come across papers from the bank and in additional conditions, it states that the mortgage and 'title' be in both names, we are now separating and and there is major hassle over property, does anyone know where I stand with this, have I a case against the solicitor or the bank as their own legal team did not check that , that condition was'nt met1

I might add one thing, which may or may not apply.

The papers that you came across sound like a loan offer. But sometimes a loan offer arrives from the bank which may contain terms and conditions which are not acceptable. It can happen that the solicitor will write to the bank to take up a new loan offer, with different terms and conditions.

The bank usually sends copies of the documentation/loan offers to its customer, in addition to that sent to the solicitor.

Therefore, it can happen that there can be irrelevant paperwork at home.

The relevant loan offer is the one which was accepted. That is the loan offer which must be checked. The solicitor should have a copy on his file.

Marcusm

etteloc59 wrote: »

I understand this, but it has just come to my attention that it was a pre-drawdown requirement in the mortgage offer contract, so the solicitor did not do it and then the bank did not insist on it and it is their own condition that has not been fullfilled, so to me both the solicitor and the bank are in the the wrong and the contract is null and void? Am I wrong in thinking this?

If you were using the mortgage funds to purchase the property it cannot have been a pre drawdown commitment that the property was registered in bith names as that is putting the cart before the horse. The solicitor which acted both you/your husband and the bank will have given an undertaking to the bank that the property will have been registered in joint names - that is the effect of the drawdown commitment you cite. Clearly the solicitor has failed to meet this obligation and his obligations to you. Such footfaults can be remedied and would hardly require the voiding of the whole transaction.