Removal from title

Discussion in 'Legal Issues' started by Niall McCarron, 16th Aug, 2019.

Join Australia's most dynamic and respected property investment community
  1. Niall McCarron

    Niall McCarron New Member

    Joined:
    16th Aug, 2019
    Posts:
    2
    Location:
    Perth
    Hi thanks for access to this forum.

    I have a problem with a property I own in Perth with my ex. We bought it as an investment property together where put in 71/29% on the deposit and we drew it up the settlement that way. We broke up over two years ago and I've been paying the mortgage since. She is contact able. She refuses to talk to me. Its looks like she has walked away from the house. I would sell it if could but the markets has dropped so much. I basically want her off the title but she refuses to talk to me or her family. Then I plan to hold on to it until the market picks up and moves it one. I've about 140000 in the house she has 20000 approx. How can I get her off the title?? Do i have i reasonable case to have her removed??

    Thanks.
     
  2. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    14,787
    Location:
    Sydney or NSW or Australia
    Have you sought legal advice?
     
    Niall McCarron likes this.
  3. Terry_w

    Terry_w Broker, Lawyer, Tax advisor, Debt Recycle advisor Business Member

    Joined:
    18th Jun, 2015
    Posts:
    21,817
    Location:
    Australia wide
    You need to get legal advice on making a supreme court application, or family court application.
    You can't remove her otherwise.
     
    Perp and Niall McCarron like this.
  4. Niall McCarron

    Niall McCarron New Member

    Joined:
    16th Aug, 2019
    Posts:
    2
    Location:
    Perth
    Thanks I aware I need legal advise but a friend put me on to this forum.

    I guess I'd like to know what's involved in the court procedures. When I cant in contact with her will the courts remove from the title.

    Any recommendations on a lawyer in Perth??
     
  5. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    14,787
    Location:
    Sydney or NSW or Australia
  6. Terry_w

    Terry_w Broker, Lawyer, Tax advisor, Debt Recycle advisor Business Member

    Joined:
    18th Jun, 2015
    Posts:
    21,817
    Location:
    Australia wide
    I don't know much about the family law side, but on the property law side the court would generally appoint a trustee to sell the property. One of the owners might then buy it, usually at auction, so they become the sole owner. The sale proceeds would be held by the trustee and then distirbuted between the parties in the relevant portions.

    But to change title you will need to have the mortgage discharged and to discharge a mortgage a new loan will need to be applied for.
     
    lixas4 likes this.
  7. Terry_w

    Terry_w Broker, Lawyer, Tax advisor, Debt Recycle advisor Business Member

    Joined:
    18th Jun, 2015
    Posts:
    21,817
    Location:
    Australia wide
    Perp likes this.
  8. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    2,556
    Location:
    Perth, WA
    So I'm a family lawyer, and this seems like a pretty stock standard family law sort of matter to me. You should be able to have a pretty good idea of the merits and process involved within a 1 to 2 hour first appointment. Its unlikely that this sort of thing would actually need to go into court either.

    Seems a bit weird that your ex doesn't even want to talk about getting her share of the house equity - probably a longer story about that I imagine.

    I'm cutting back on legal practice at the moment, so I'm not interested in doing it myself, but if you PM me I can give you some private lawyer referrals.

    A couple things to keep in mind:

    1. You might be on or past your limitation period to apply for a family court order, especially if it was a de facto relationship you separated from. So you should be moving quickly to get legal advice.

    2. Its weird that you describe it as "removing her from the title". A better way to describe it is that you're seeking to buy her share of the property. Especially with regards to dealing with the mortgagee. Have you even checked whether you can even be permitted to refinance the securing loan into your own name?

    You might be forced to sell in any event.
     
    Perp, willair, lixas4 and 1 other person like this.
  9. lixas4

    lixas4 Well-Known Member

    Joined:
    24th Jan, 2016
    Posts:
    306
    Location:
    Melbourne
    What are you doing instead of practising law?
     
  10. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    2,556
    Location:
    Perth, WA
    I'm developing property part time, and also a part-time academic at a law school. Keeping busy!
     
  11. Paul@PFI

    [email protected] Tax Accounting + SMSF Business Plus Member

    Joined:
    18th Jun, 2015
    Posts:
    9,669
    Location:
    Sydney
    One key benefit of seeking legal advice is the property agreement may access a CGT concession which will avoid her facing tax and also access a stamp duty concession and it may basically "unwind" her involvement so that in the eyes of the ATO you are considered to have always owned 100%.