Hi pinlessg

The answer is somewhere in the middle I suspect.

Depending on the original agreement, you may need the builders consent to conclude the sale. If he gives this, then the balance becomes an unsecured debt as it is no longer attached to the property. Once this occurs, then this can be added to the Trust Deed.

If their consent is required and they decide not to give it, then you can abandon the property as a last resort ( or at least threaten this) and they will definitely become an unsecured creditorin any future Trust Deed.

I hope this makes sense.

Mark

Hi Mark,

Thanks for getting in touch. Would you be able to clarify what you mean by getting the builders consent to conclude the sale? Would I advise them I am about to set up a TD and obtain consent for this to become an unsecured debt? Also, the company I spoke to advised that from the sale, the money would be released as follows: 1. Builders share 2. Any fee's associated and 3. The mortgage company. Which appears weird I think.

If I were to abandon/or threat to abandon this, would the builder be able to pursue me legally?

Sorry for all the questions, just feel like i'm in the middle of a mine field at the moment.

Thanks

Hi pinlessg

Strange, as the sale would be paid the complete opposite of that stated. The mortgage, builder and fees. The 1st 2 are secured on the title, the fees are not. In general you will need to achive a figure sufficient to settle the 1st 2. Otherwise you will need the consent of the 1st 2.

Irrespective of what you decide - sale and shortfall or abandon and shortfall, any balance of fees or balance to builder etc will always be a claim in the Trust Deed. We have a number of cases identical with no issues following the sale/repossession. So no need to worry. Honest.

Mark

Hi Mark,

I know that's what I thought. Thanks for the information and reassurance. At the moment, not including legal fee's, there will be around a 5k difference between what I owe and what I receive. My flat has been on the market for almost a year now, which I know is not long compared to other cases, but hopefully the mortgage company and builder would take this into account. If I were to abandon this, would I have to go down the bankruptcy route? Or could I just add the shortfall to the trust deed after it had commenced?

Thanks

Hi pinlessg

No the trust deed would deal with this. There would be no reason to look at sequestration.

Best idea would be to try & get everyone's agreement to get the sale to proceed and settle.

Mark

Thanks very much Mark, appreciate your help.

No problem at all.

The majority of these things are something we deal with regularly, so always glad to help.

Mark

Hi pinlessg,

Have you concluded missives yet?

You want to ensure that your solicitor confirms with the builder if they will be prepared to consent to the sale of the property if they are not going to receive their full balance back. It may be the case that they will not be prepared to consent to the sale on this basis.

As Mark has said if they are not, you can allow the property to be repossessed and the shortfall can be included into the Trust Deed along with any additional costs in relation to the property.

Hi David

It's an interesting point. I would have thought missives would have been concluded at this late stage with a settlement date in less than 2 weeks. Question is if they are concluded, should the Solicitor not have checked all the figures to ensure they can give clear title?

Mark

Hi David and Mark,

No I haven't signed or concluded any missives as of yet. I accepted the buyers offer subject to receiving a satisfactory valuation on the shared equity proportion. For some reason, the builder have sub-contracted another company to handle the admin side of the shared equity valuation, they have been absolutely terrible. I just wish I had a proper indication of the valuation at the start. At this late stage, I am concerned that the buyer will have a legal right to pursue me for costs etc from pulling out the sale at this late stage?

Hi pinlessg

They have no rights unless missives have been concluded. So no worries there.

Mark

That's great Mark thanks very much