QLD Sons De facto split with Property

Discussion in 'Family Law Forum' started by Lulu1971, 29 September 2019.

  1. Lulu1971

    Lulu1971 Active Member

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    Hi,
    My son was in a de facto relationship for 4 years, 2 years cohabitating, bought a house together 1 year ago. Both names on the mortgage. Now she has ended the relationship, they have agreed to sell the property and split all assets 50/50. My son has just moved out as he feels uncomfortable as she is bringing her new partner to the house.
    My son just wants out, to sell the house to cover the cost of the loan, real estate fees/commission and conveyancing. They had received an offer to cover these costs but she declined that offer without my sons knowledge. Now she has priced the house unrealistically high with the real estate. Now our worries:

    Since they have separated, they had agreed to pay for all bills associated with the house 50/50 while he was living there. She was not always able to do this so my son covered her shortfall. From this point on his is paying his half of the mortgage repayments, house insurance and rates.

    What happens if she fails to pay her half?
    What happens if they don’t come to an agreement on the price to sell?
    Can she stop him from going to the house to see their dogs? Or to maintain the house?
    What should he do to protect himself as he doesn’t want to default on the loan and get a bad credit rating?

    Any help would be greatly appreciated.
     
  2. sammy01

    sammy01 Well-Known Member

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    Firstly, sorry for this situation. From here on all my advice is brutal. Hey at least he didn't have kids with her...
    ok, so there is are some tough lessons to be learnt here. Just outa interest do you think her new fella has moved in?

    She could live in the house of years with him paying. So he wants to make sure the real estate agent contacts him and her.... But if both parties don't sign then it is all for nothing. Lets face it she is on a sweet wicket. Living in a house worth X but only paying half X. Why would she want that to change any time soon. Especially if she has struggled to pay her half?

    What happens if she fails to pay her half? Good question... Better question - what happens if he fails to pay his half? So right now she is living in a place and paying half of what it costs to live there. Even less if the new fella has moved in and is paying rent, which of course she will deny. So she is saving $$$. Meanwhile ol' mate has to pay half the mortgage and rent somewhere? Which leads to the question about the credit rating.... Look believe it or not banks have a heart. So first stop, contact the bank, talk to them about hardship provision.... Basically what happens if HE stops paying. Sure his credit rating might take a dive, but realistically, he isn't gonna be in any position to buy again for a few yrs because this thing is gonna hurt him financially.

    Ok so what to do? Dont go near her. Possibly write her a very nicely worded letter explaining a few things.... NOT the bit about him not paying... MENTION that he thinks the thing is unrealistically priced and suggest a compromise that the thing can stay at that price for another 3 weeks but then the price drops by 5% a month until it sells or reaches a set price and that 1 month after that it goes to auction and they accept any offer above XXXX?

    So what about the furniture etc? Is there anything else like furniture, cars, toys etc that needs dealig with? does he still have stuff at the house (other than the dogs)? He can include this in a very nicely worded letter. See what happens after that. If she gets back to him and is prepared to play nice SWEET... If not then I suggest he stop paying for any of it...Put the money in a nice safe place and leave it there in the event she starts playing nice and he needs to pay the bank.

    Unless she agrees, forget about the dogs and the house maintenance. Going to the house is only gonna cause him stress and possibly arguments.
     
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  3. Lulu1971

    Lulu1971 Active Member

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    Thank you for the quick response.
    She has told him the new guy is a couch surfer, so yes I think he will move in.

    They have split the furniture and he has moved out 90%of his stuff out, just things in the shed are left, nothing left in the house.

    She has informed him as she is now paying for utilities, he must give her notice of coming over to visit the dogs as well as to pick up the rest of his belongings. Is this correct, can she do this?

    He is staying with us for now and has a very good job so the mortgage, house insurance, rates and personal bills are all covered so he isn’t really in hardship can he still say that to the bank?

    So stressing :(
    Thank you for your help.
     
  4. sammy01

    sammy01 Well-Known Member

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    ok, so look there is no hard and fast rules. There isn't para 15 sub section B that states he must give notice.... But lets pick our battles. Best to play nice so he can get this sorted and move on with minimal fuss. So give her a few days notice before going to the house. Big deal. Better than him rocking up, them having an argument, the new boy friend flexing his couch surfing muscles, her calling the cops and him winding up with an AVO.... Don't doubt it happens that easy...

    Now what about these dogs. How long has he had them and how many? I'm amazed how often idiots spend money in court fighting over dogs like they're children... For the minute forget about the dogs. (Kinda) look he could write to her and ask very politely to come over at 3pm (for example) every 3 days to walk the dogs and return them at 4.30... So take them off the premises. But again, if she doesn't agree then don't push it. I don't doubt once the house sells and she has to find a rental that she wont want the dogs.... But lets go slowly for the minute.

    Nope there isn't a 'rule' that states that because she is paying the utilities he must give notice, but not a fight worth having... OR have the fight, watch the nutter break every internal wall in the house and then leave him to deal with... Sound like fun? yep didn't think so...

    Learn to play chess.... So what I mean is this is all strategy. Forget emotions. So if things are on 'reasonable' terms keep playing nice. But once it becomes apparant that she is keen to live there for an extended period then he can simply stop the mortgage re-payments to force her hand.

    So amateur psychology lesson. Right now she is in a pretty comfortable situation. By the sounds of things she is gonna struggle to pay rent on her own and the new couch surfing boyfriend ain't much help. So while she is in the house she is happy and comfortable because your son is paying to keep a roof over her head. Why would she want that to change? So if she isn't gonna play nice, he will have to do something to make the current situation less comfortable.... So right now she is thinking she is gonna walk away from this relationship with some money (50% of what is left once the mortgage is dispersed) even though by the sounds of things she hasn't paid half? didn't contribute half of the deposit? etc. So how to make it less confortable? Well he has limited options.... If he stops paying the mortgage then she becomes less comfortable, she either has to pay it all OR understand that the 50% she is gonna get is starting to shrink... Meanwhile your son isn't paying and he is saving some $$$.

    But let's not get ahead of ourselves.
    One more thing, is the an overdraft? A red-draw account? Joint funds in a joint account? money they can both access? If there is you need to get onto that asap. If she tranfers it to her personal account it is as good as gone. Get back to me on this one if relevant and I'll give some advice.
     
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  5. Atticus

    Atticus Well-Known Member

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    An alternative approach... Your son can approach the lender (much better if both signatories to the mortgage agree though) and ask that they be allowed to pay interest only on the loan pending a formal property settlement.... as long as they are actively trying to sell the place the bank may agree to this... Advantage of that is that neither party is disadvantaged & the money saved can go towards maintenance/improvements to help sell.... Worse case, bank does not agree, but as long as the loan is being serviced by at least interest only payments, they will not be able to foreclose or report a default in the repayments to affect credit ratings...

    Sammy's advice is great... Keep playing nice. At least up to the point that it becomes clear that he's being duded... Pay special attention to the part about avoiding an AVO
     
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  6. Lulu1971

    Lulu1971 Active Member

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    Thank you all for the great advice.

    They both put in equal amount for the deposit, $20, 000 each which I gather she is hoping to recoup.

    No overdraft.
    There is an Offset account that they both have access to but my son is only putting his half in on the day when the repayment needs to be made.
    There is an available balance of a few thousand in the mortgage.

    Firstly, he is sending a ‘nice’ letter informing her he would like to collect the rest of his belongings on a specific day and time. Then he will send another letter suggesting the house is overpriced and to possible lowering the price at certain increments and if it doesn’t sell by xx date then maybe they should think about going to auction with a reserve of $xx, enough to cover the cost of mortgage and any associated costs.

    He is now forgetting about the dogs and staying away! Going to meet with the bank and ask a a whole lot of questions.

    Playing nice :) Let the chess game begin.

    If there are any new developments, would it be okay to continue with this thread? As your advice has been very much appreciated and valued.

    Thank you again
     
  7. sammy01

    sammy01 Well-Known Member

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    sure keep us updated... Actually, I'd encourage you to run the letter past us with personal details redacted.... I'm assuming there is still phone / text contact? He wants to make sure she cant deny recieving the letter.
     
  8. Lulu1971

    Lulu1971 Active Member

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    Yes they have text conversations but we have suggested they be limited - only if necessary.
    How does he make sure that she has received the letter if he is staying away, does he have to send it via registered post but then it seems like we are not playing nice?

    Confused

    We will organise a draft of the letter today.
     
  9. sammy01

    sammy01 Well-Known Member

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    yep minimise all contact.
    Write the letter, once you've sent it, text her to let her know. Part of that needs to be somethine about how he'd like her to respond. Look you don't wanna get all demanding and say stuff like you have 14 days to respond, because you wanna avoid anything that could be percieved as threatening.

    So end the letter with...
    Can you please call or text me if you would like to discuss any of the contents of this letter.
    Kind Regards Hope you are well, missing you already, don't go changing blah blah blah
     
  10. Lulu1971

    Lulu1971 Active Member

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    Okay here is the letter........feeling nervous

    Dear XXXXX,

    I think the sale price of our house at ‘XXXXXX Street Suburb’ is unrealistically high as XXXXX the agent from XXXXX Real Estate has also confirmed.

    I suggest we stay with the current price of offers over $XXXXX until the 12th October 2019 when we will lower the sale price by 3% every month until sold or until it reaches $XXXXX.
    If it hasn’t sold by the 30th November 2019, the house will go to auction with the reserve price of $XXXXX and we will accept any offer from this amount and above.

    Text me what you think or if you’d like to discuss any of the contents of this letter.
    Hope you are okay, take care.
    XXXXX



    Just to clarify, we should send it via registered post??
    Anxiously waiting for your feedback.
     
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