Welcome to the forum BillRobbo.

I think we can probably only advise you from the perspective of your trust deed rather than any entitlements that your Civil Partner may or may not have. I'd suggest that you wait to see what our experts have to say in regard to your questions as well.

Thinking about earlier threads (in particular one Kevin commented on this morning) I'm slightly unclear whether a sale of the property actually during the trust deed (rather than at the end of it) would result in all of the proceeds being paid into the trust deed, or whether it would be limited to the £8300. One of the experts should clear this up soon for us.

What your Civil Partner is actually entitled to if you split is a question for a solicitor that specialises in this area. It's a subject that falls outside our areas of competence I'm afraid.

I would imagine that the trustee would seek the full amount of any proceeds, BillRobbo. I doubt that your partner would be able to lay claim to any of it, though as trust deed assistant says, I'm not a solicitor and you should get proper legal advice.

Thanks for info. So as far as you see it, even though I have a Civil Partner, as they are not on the Mortgage they will not be entitled to any of the proceeds from the sale and I would have to give the trustee all of the proceeds from the sale , even if that is more than the agreed sum I paid the bond for at start of trust deed? (ie £8300)

Hi billrobbo

I think I need to disagree.

There are 2 issues here, firstly the rights of a Trustee under a Trust Deed and secondly the rights of a partner in a civil partnership.

If the property was sold, then I suspect the Trustee's entitlement is restricted to the £8,300 agreed at the start ( although this is a new use of this stupid Bond idea where now they get equity and a bond of £500!) I am not 100% on the rights of your partner in terms of the civil arrangement, however I suspect the workings of The Civil Partnership Actgive your partner a legal right to half of the remaining equity after payment of the £8,300. Their right will not supercede the right of the Trustee.

I am aware that maintenance can be granted and as mentioned earlier, I suspect half of the net equity may be payable as well.

Hope this helps a wee bit, but best get legal advise on the position of the civil partner.

Mark

Hi Billrobbo

Sorry, a wee addition I found:

Rights for home owners

If you and your civil partner own your home jointly or if your partner is the sole owner, you have the right to pay the mortgage, any secured loan instalments and the council tax, and to carry out essential repairs without your partner's permission.

If your partner rents out or even sells the property without your permission, you will not have to move out and the new tenant or new owner will not be able to move in while you are still living there.

Your partner won't be able to take out a second mortgage or secured loan on the family home without your permission, although they will be able to apply to the court to dispense with your consent.

If you and your partner split up, you will be able to apply to the court for the right to sell the property and divide the proceeds between you.

Mark

Hi Billrobbo

I thought I should add my tuppence worth!

I would agree with Kevin. If your property was to be sold, I think your Trustee would probably expect the full proceeds to be paid to your Trust Deed. You should speak to your Trustee however and get them to confirm in writing their position. Please let us know what happens, it will be really interesting to find out the outcome considering we have a split of opinions!

Not sure of the civil partnership side of things, however if your property was sold and the full proceeds paid to your Trust Deed, your partner wouldn't recieve any of the funds. You should however seek legal advice on this matter.

Julie

Thanks for all your input. It seems I will need to speak to my Trustee first and get their position. I will let you know what they say.

Hi all

an interesting point, as the argument appears to be a timing one. So if the Trust Deed came to the 3rd anniversary and the money couldn't be raised by remortgaging and was then sold, would the Trustee seek all the funds or just the sum agreed at the start.

What if the matter was to be settled, say 6 months before the end and in the same situation, would he seek all the funds. Pretty pointless having a £500 bond guaranteeing that the Trustee will have no further interest above £8,300. Legally I can see no reason how he could pursue above this figure as there is a legally binding arrangement in place and its not acquirenda.

Keep me posted Billrobbo, it would be interesting to see how they could possibly argue for the greater amount after agreeing a fixed sum at the start. This is a cake and eat it scenario!

Mark

Mark

I have just been told that, should I sell the flat before the end of the Trust Deed, the Trustee will be wanting all of the free equity paid to them, not just the £8,300 agreed at start and for which I paid a £500 bond.Therefore my ex partner would be entitled to nothing from the sale? is this correct?

Hi BillRobbo,

It's still difficult for us to comment on what your ex partner is and is not entitled to. That's probably a matter you should each take legal advice on.

You (and/or your ex partner) may also want to take legal advice on whether your Trustee should take all of the equity in this scenario. As is clear from the expert comments on this thread there is a split in opinion about how this could/should work.

If the property were sold and all of the proceeds were paid into your trust deed you clearly wouldn't be in a position to pay your ex partner for a share of the equity.

However the ex partner still might be able to claim against you for their share that of the surplus that they may consider is owed to them. Again... we're getting into a legal area outside of the scope of this site and forum I'm afraid.

Hi all

This is certainly an interesting technical and legal point.

As matters stand, the Trustee advises that his interest in the equity will remain static at £8,300 on the basis that a 'bond' of £500 is paid. I assume no other conditions attach. The 'bond' is paid.

We then need to ask what the rights of the trustee are in the event that the property sells before the 3 year period of the Trust Deed is up, when he has contractually agreed the £8,300. If you were able to remortagage and raise, say £10k from the remortgage would he seek the full £10k or the agreed £8,300?

Is there any part of the legislation or guidance which states that the sale or refinancing needs to take place after the 3 years? Nope.

So the crux of the matter is, what happens legally a day after the 3rd anniversary to make it ok to accept £8,300 and not the full balance, which makes it impossible to accept the £8,300 a day before the 3rd anniversary?

Billrobbo, I would be tempted to ask your Trustee as his answer at the moment appears to be 'It is, just because it is'

Mark

It is an interesting one, certainly, and I have some sympathy with Mark's point of view. However, I think your trustee may argue that the £8300 amount is that required to buy out his interest in the property rather than it having to be sold. In the event of a sale taking place before such a sum has been paid across then the trustee's interest is in half of the proceeds rather than a notional sum based merely on a valuation.
I know Mark is going to come back to me now and argue against this!! I think the real answer has to be what would the relevant court decide if it went that far, and I'm afraid I'm not brave enough to predict that!

Hi Kevin

Correct. The basis of the argument is contract law. There is a contract in place whereby the payment of £500 limits the Trustees interest in the property to the sum stated. I assume, based on your argument, that if the property was sold to repay the agreed sum, say 3 years and 2 months later, the Trustee would take the full proceeds of the sale, thereby negating any value in the 'bond' or agreement.

Mark