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VIC Getting Evicted from House We Paid Mortgage On?

Discussion in 'Debt and Bankruptcy Law Forum' started by Nickii, 29 August 2016.

  1. Nickii

    Nickii Member

    29 August 2016
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    I have booked in to see a solicitor about this, but I can't get in till next week and I am wondering if someone could give me some help on where I stand.

    4 years ago, my husband and I were renting and with two children, couldn't manage to save any money towards buying a house. My father ( who is very very well off) offered to take a personal loan out of 100,000 to give us as a gift to put down as a deposit on a house to buy. Naturally we were thrilled as he hasn't done much for me my whole life.

    As we looked at our home loan options, it became clear it was going to be a problem as my husband owns his own business and has a 'good' accountant so his tax returns for the last two years left little to be desired in the eyes of the bank, so it was either wait two years and not fudge any paperwork or not buy a house at all. When we spoke to my father about this, he offered to obtain a home loan through the family trust and as I was appointed a director of the trust, he told us it would basically be our house, anyway, so happily, we agreed and found a house and purchased it.

    We signed the contact of sale as our own names but the house was put in the trust's name. We have been paying the mortgage into his account which then gets deducted out when due to the bank. We had been paying $500 a week for the last 3 1/2 years when his wife of 1 year divorced him. He started to take out all his frustration on me and be abusive.

    I spoke with my husband and agreed that I wouldn't put up with his abuse anymore and refused to speak with him until he dealt with his anger issues. We have two children and the way he started to abuse me in front of them was disgusting and I wasn't having it. He tried to send me text messages apologising, but as he has abused me my whole life, I had no problem in ignoring them.

    He stayed in contact with my husband and we continued to pay the mortgage. After a couple of months, he sent a text message stating that because I was no longer willing to speak with him, he would no longer be responsible for the loan on our house of $300,000 or the personal loan that was a gift of 100,000. If we couldn't come up with 400,000 in two months, we were to leave the house and he would sell it.

    He then arranged to speak with my husband and offered that we sign a lease on the property for 12 months and organise to take a loan of 400,000 in that time to pay him out. As we had no intention of taking a home loan out ever again, we have the 'good' tax accountant we always had and are right back in the same situation we were in before, except we are being evicted in two months from a house we have been paying a mortgage on for 4 years.

    I was wondering if anyone would know where I stood legally with this? If I am one of the directors of the trust, the house's title is in do I have ownership rights? I spoke to his ex-wife who was with him at the time we purchased the house and she told me that he had paid the 100,000 out when they sold their last house a year and a half ago and that if he had re-borrowed the 100,000 for the renovations, he has just done on his new house that it isn't the same personal loan he took for us.

    So do I have to borrow 100,000 extra if it was a personal gift and it had already been paid? Can I claim the money back we have paid to him over the last 4 years of 104,000 if he wants the house back?

    Thank you to whoever for your time I really appreciate it.
  2. Sophea

    Sophea Guest

    Hi NIckii,

    There are several issues of law involved here and this appears to be a fairly complex matter so its difficult to provide any straight answers. If you can prove that the $100,000 was a gift and not a loan, you will not need to repay it simply because he is now demanding it. If you can find any kind of evidence of this such as texts, emails, notes etc that would be very useful.

    Although you are not the legal owners of the home, you may have equitable rights to it if you can evidence all the funds that you were paying into another account from which the mortgage was being paid. However a court will be required to determine such issues, so unless you can reach a settlement with your father it could end up a lengthy and costly legal battle.

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