Hi hooky15

Section 5 has nothing to do with either trust deeds or property.

Her trust deed only has an interest in one half of any value of equity. To force the sale of the property the trustee would require to raise an action of Division and Sale which normally is unlikely.

Is there any value in the house?

Mark

Thank you for your reply Mark. Yes there is value in the house.

Should I have been notified when the trust deed had been taken out? Since I own half of the house. Since this does affect me and half of my property.

I thought it would have been good practice to notify you although its not a requirement at this stage.

Best contact the trustee and discuss the position with your ex's one half share of the equity to see if there is a compromise. Don't worry about a sale as this is always a last option and you still have full rights to the house.

Mark

Thank you. I read that I should have signed something as it's joint property. How can this not be the case? I have paid 100% of the mortgage. 1/2 of my mortgage, surely I would have to agree?
The deed is not protected...does this affect me?

When does it become a requirement to notify.
Many thanks

Oh! Such a technical question depending on how closely the Trustee uses the sequestration process to mirror the trust deed. Generally though, only when he is looking to realise the equity.

Good sense would have the trustee notifying early though. Unfortunately good sense rarely applies!

Mark

What if I am not the sole owner of the property?

If property is jointly owned, a Trustee will need the permission of any other owners as well as those who have rights to live in the property before arranging any Trust Deeds in Scotland. They have the power to force the sale through the courts if your co-owner(s) refuse. Once a ÔÇÿdivision and sale' has been granted, the Trustee will sell the property and give the other owner(s) their share of the proceeds. You share will be used to pay your creditors.
????

Mark I found the above information. Is this not true?

Hi hooky15.

This must be a horrible situation to be in and a real shock.

It's not the first time that a similar situation has been raised here.

Irrespective of whether you should have been informed or not the situation remains the same.

When your wife signed a trust deed her half of any joint assets vested in her trustee. The trustee gains an obligation in respect of those assets to realise their value for the benefit of her creditors.

You should get in touch with her trustee to try to find a solution that is acceptable to you and workable for you.

The statement you quote isn't correct, hooky15. A trustee only needs to seek your permission to sell the property, not to arrange the trust deed in the first place. If you refused such permission then they can go to court to seek the permission of the sheriff to sell the property without your consent.

I really do sympathise with your situation - especially if you have been paying the mortgage on your own for some time. I think you would be well advised to seek legal advice/representation if the trustee does make moves to try to sell the property. It is possible to argue your case in court and factors like who has been paying the mortgage etc may be relevant.

Having said that, we are getting a bit ahead of ourselves here - quite understandably mind you. Most often in situations like this a deal can be done which means that a property does not have to be sold.

does it make a difference that the deed isnt protected?

Not really as the Trustee can still carry out his duties under an unprotected trust deed.

The non protection only really affects the rights of the creditors.

Mark