# Transfering ownership of a property



## corktim (17 Nov 2012)

Hi All,

My sister went on a mortgage but not on the title deeds with me a few years back to help me buy my first home but now im in trouble with repayments and afraid it will affect her.

i know her credit history will be affected but she is now married and has a house with her husband and 2 kids. i take it they could come after her house too but what i want to know is if she can transfer ownership to her husband to aviod the bank coming after her home? there is a mortgage on her property and about 180k negative equity on the property she owns with me.

Appreciate any replies.


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## Vanilla (17 Nov 2012)

She can only transfer ownership if the bank with a mortgage on the property will agree to it. 

Furthermore if she is transferring with fraudulent intent, to avoid creditors, then the transfer could be set aside.

Finally even if she manages to transfer ownership, there is nothing to stop the bank on your shared property still taking action against her, obtaining a judgement and pursuing that money in other ways.


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## WizardDr (19 Nov 2012)

@croktim usually the title is a 'joint tenancy' as its to survivor and also is protected from a judgment as one has to wait until oen or other party dies. If the judgment debtor dies the property passes to spouse.

It would be unusual to have 'tenants-in-common' which is the other type of ownership which might be problematic. 

Find out that first.


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## Vanilla (19 Nov 2012)

Joint tenancy is not protected against judgements.


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## WizardDr (19 Nov 2012)

@vanilla - I think S30(3) Land and Conveyance Law Reform Act 2009 is worth a read:

(3) From the commencement of this Part, registration of a judgment mortgage against the estate or interest in land of a joint tenant does not sever the joint tenancy and if the joint tenancy remains unsevered, the judgment mortgage is extinguished upon the death of the judgment debtor.


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## Vanilla (19 Nov 2012)

I'm aware of that. It does not SEVER the joint tenancy. And?


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## WizardDr (19 Nov 2012)

@vanilla if it does NOT sever the joint tenancy, the judgment cannot be enforced - and if the judgment debtor dies - the judgment is extinguished. At least thats what the lawyers think. So when its said it doesn't sever it - it means the judgment creditor cannot enforce the judgment until the unaffected tenant(s) die and the judment debtor is sole owner. If the judment debtor dies - so too does the judgment. Its that signficant.

This is different to a tenancy-in-common which is a share. Therefore a judgment being enforced could see the house sold or the other(s) buying out the judgment.

What say you NOW?


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## Vanilla (19 Nov 2012)

You said joint tenancy protects against a judgement, it doesn't. A creditor can still register a jm against a property owned by joint tenants.

S.31.2.c  of the 2009 act gives explicit power to apply for an order for sale. 

But either way, once it's registered it's there for 12 years at least. If the other jt dies, or if the house is sold or needs to be transferred the jm has to be dealt with.

Obviously a judgement creditor has many other options than just the registration of the jm as per the 2009 act, once the judgement is obtained after the act.


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## j26 (19 Nov 2012)

[QUOTE="Law Reform Commission Report on Judgment Mortgages]6.13 This then raises the question as to whether there should be a 
severance (as with unregistered land) or not (as is possibly the case 
with regard to registered land).  Were there to be no severance, and if 
the judgment debtor dies before the judgment mortgage is enforced, 
the joint interest of the judgment debtor passes upon his or her death 
to the non-debtor owner apparently free from the encumbrance 
created by the judgment mortgage.  However, if there is a severance, 
then the interest of the judgment creditor pursuant to the judgment 
mortgage would appear to pass with the title to the newly created 
tenancy in common.  So if the judgment debtor dies before 
enforcement of the judgment mortgage, the interests of the judgment 
creditor are not thereby defeated where there is a severance.  [/QUOTE]

The issue of severance only applies where there the judgment mortgage is NOT enforced before the death of the judgment debtor.

As Vanilla says, there are methods of enforcement, and these apply even in the case of joint tenants.


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## WizardDr (19 Nov 2012)

Hold on - spell out what happens a judgment mortgage on a joint tenancy.

Take these as facts: A and B are in joint tenancy.
B has a judgment mortgage against him as of today.
B has no other assets.

Tell me what happens the property today assuming we go for nuclear option.

Forget any other options - just the joint tenacy.

B dies in 5 years time.


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## Time (19 Nov 2012)

A owns house and the bank can go swivel.


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## Vanilla (19 Nov 2012)

That is what happened in the well known Lawlor case.

However, bank is very unlikely to wait for death of joint tenant in five years time. They get their judgement, register the jm, and then go for an order for sale. Which they are entitled to do, under the act, if the judgement is obtained after 2009.


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## WizardDr (19 Nov 2012)

@vanilla - I will check it out - my u/s is that the judgment cannot be enforced and that what the 2009 did was align registered and unregistered land.


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## WizardDr (20 Nov 2012)

@vanilla - 

First the Law Reform report was 2004 prior to the Act and it highlighted an ambiguity bewteen unregistered land and registered land. With a joint tenancy you could sever one and not the other with a judgment mortgage.

The Act in Section 30 means you do not sever a joint tenancy on either unregistered or registered land and reflects the recommendation of the LRC.

In other words quoting the guru in Kings Inns known to all barristers "..registration of a judgment against the estate or interest in land of a joint tenant no longer severs a joint tenancy. If the joint tenancy remains unsevered, the judgment mortgage is extinguished on the judgment debtor's death.."

If it was such that the judgment creditor could enforce - what's the relevance of the reference to the death of the judgment debtor?

If this were otherwise, the family home would be an issue in virtually all cases and even if the other spouse had 50% he or she would be unable to stop a sale.

My view is as I said originally, a judgment mortgage against 'joint tenancy', ceteris paribus, is virtually useless unless there is consent from the other parties who do not have a judgment against them. What may confuse people is that joint tenancy is NOT a share, such as this part of the property is mine and this part is yours. Thats not the way it operates.

Joint tenancy operates such that survivor takes all and  its not an asset in the will.


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## Vanilla (20 Nov 2012)

_I didn't quote the Law Reform commission report, j26 did, but the act was influenced by the report._

_I'm going to quote the relevant sections of the 2009 act for you ( parts of s.31 ) as it seems you haven't read it._

"Any person having an estate or interest in land which is co-owned whether at law or in equity may apply to the court for an order under this section...​ 
An order under this section includes...​ 
(_a_) an order for partition of the land amongst the co-owners,
(_b_) an order for the taking of an account of incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances,
(_c_) an order for sale of the land and distribution of the proceeds of sale as the court directs...​ 
In this section—
(_a_) “person having an estate or interest in land” includes a mortgagee or other secured creditor, a judgment mortgagee or a trustee"​ 
_Now we can all agree that a jm does not operate to sever a jm, and indeed it was thoroughly tested in the Lawlor case. However a judgement creditor can still apply for an order for sale, regardless assuming the judgement debtor has not died!. _​ 
_You could also take a look at an article in the Law society gazette ( don't remember when but certainly within the last year or so ) by Flor McCarthy solicitor ( who was actually involved in the Irwin-v-Deasy case) which gives a great overview._​


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## WizardDr (20 Nov 2012)

@vanilla - read this as you obviously did not read Section 30. You obviously did not read the other contributors posts which pimnted out the LRC Report -  it was of course referred to by them and nit your honour, but they were dismissed (without costs) as well.



30.— (1) From the commencement of this Part, any—
(a) conveyance, or contract for a conveyance, of land held in a joint tenancy,

(b) acquisition of another interest in such land,


by a joint tenant without the consent referred to in subsection (2) is void both at law and in equity unless such consent is dispensed with under section 31 (2)(e).

(2) In subsection (1) “consent” means the prior consent in writing of the other joint tenant or, where there are more than one other, all the other joint tenants.

(3) From the commencement of this Part, registration of a judgment mortgage against the estate or interest in land of a joint tenant does not sever the joint tenancy and if the joint tenancy remains unsevered, the judgment mortgage is extinguished upon the death of the judgment debtor.

(4) Nothing in this section affects the jurisdiction of the court to find that all the joint tenants by mutual agreement or by their conduct have severed the joint tenancy in equity.

So explain that if you will. I am merely quoting one of the parties who wrote the law, but I am not sure that holds much weight in your Court, M'Lud.

M'Lud you might explain why the banks did not seek the family home be sold in cases where there were judgments against the spouse? I suppose you will be telling us that the banks are merely being considerate. Indeed.

Additionally of course the judgment creditor may apply under s31- if there was evidence of an arrangement whose purpose was to defeat the judgment as an example - but if this was a property in joint tenancy and there was nothing underhand about how that came about - they would be highly unlikely to succeed, unless of course its M'Lud on the bench in which case - steer clear of Court Number 007 - and prepare for an avalanche of cases. [The Act suggests that this would be conduct.]


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## Vanilla (20 Nov 2012)

S.30 is not inconsistant with s.31. I didn't think I'd have to explain that, but it appears I do.

A judgement mortgage does not sever a joint tenancy. So if the judgement debtor dies before the judgement creditor enforces the mortgage, the other joint tenant is free and clear- as per the Lawlor case.

But go on to s.31, if the bank enforces the jm before the debtor dies then they can do so as against the equity of the judgement debtor only.

There are some references in your last post that I don't understand, surrounded as they are with a great deal of what I assume is 'humour', so I hope you'll understand if I don't address those- for e.g. this sort of stuff:

 "You obviously did not read the other contributors posts which pimnted out the LRC Report - it was of course referred to by them and nit your honour, but they were dismissed (without costs) as well." 

I've read it a few times and still don't understand it. So I've just ignored it, but feel free to explain it more clearly so I can address it, if it is in fact a point.


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## WizardDr (20 Nov 2012)

@vanilla - thats the very point about a joint tenancy - they cant!
The reason they mention the death at all is because the other joint tenant take the property on survivorship.
S30 is saying the judgment creditor does not get an interest in the land.

s31 is saying they might by order of the Court in certain circumstances.

You are saying that the Bank can enforce so long as debtor is alive - I am sam saying they cant.


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## Vanilla (21 Nov 2012)

WizardDr, think you should have a read of the following interesting article written by Flor McCarthy who as I said was actually representing one of the parties in the Irwin-v-Deasy case which seems to be what you are referencing and thus, I think you'd have to concede, actually knows what he is talking about. The situation of judgement mortgages not being enforceable as against a joint tenancy is in relation to pre-2009 judgements only.

[broken link removed]


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## WizardDr (21 Nov 2012)

@Vanilla 

I think I understand the difference in our positions.

This article refers:

Irwin v Deasy provides certainty on the position in relation to judgment mortgages
registered prior to 1 December 2009

 It creates two clear classes of instrument: those registered in the Land Registry and
those registered in the Registry of Deeds

It is reasonable to assume that there are alarge number of other creditors out there
with judgment mortgages registered prior to 1 December 2009 with a very real
interest in the implications of the outcome of this decision


What the article is NOT about is judgments after 1/Dec/ 2009 - which is after the commencement of Land Conceyancing & Law Reform Act 2009.

If the judgment is obtained AFTER 1/12/2009 (which is what I was assuming) it is NOT enforceable against joint tenancy. 

I was not focussing on judgments prior to 1 / Dec / 2009.

Does that claify it?


Many thanks for the article.


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## Vanilla (21 Nov 2012)

The opposite is the case. Judgement mortgages registered prior to 2009 cannot be enforced, those registered after the act can avail of s.31.


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## Time (21 Nov 2012)

> Judgement mortgages registered prior to 2009 cannot be enforced


Does this apply to all JM's?


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## Vanilla (21 Nov 2012)

No, no, just judgement mortgages registered prior to 2009 on registered land where there are co-owners. Sorry, my previous reply was unclear- I was referring to WizardDr.s post and of course the article. It is just an anomaly that was cured by the 2009 act.


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## WizardDr (22 Nov 2012)

@vanilla - first we have S30 - and you seemingly disregard this.
All s31 is that it does not make s30 absolute.

So s31 is not a guaranteed result.


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## Vanilla (22 Nov 2012)

WizardDr said:


> @vanilla - first we have S30 - and you seemingly disregard this.
> All s31 is that it does not make s30 absolute.
> 
> So s31 is not a guaranteed result.


 
I cannot understand your reasoning. S. 30 says that a judgement mortgage does not, in itself, when registered, sever a joint tenancy. However S.31 clearly goes on to give a judgement creditor power to apply for a partition and/or a sale of the property. 

Earlier you said a joint tenancy protects against a judgement mortgage. It doesn't.


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## WizardDr (25 Nov 2012)

Read it yourself. Power to apply for a partition order. 
So what are the circumstances? You are implying it is automatic.

I am saying it isn't and its far from that. 

Otherwise where a judgment arose after 1/12/2009 - the judgment creditor would apply and the JT severed. I think that will only happen if there arranged matters to defeat the creditor.

But if a house as purchased bona fide - then a judgment arising later would not succeed.

Otherwise what you are saying is that S30 is merely bureaucracy and that s31 provides a solution.

I am saying it does not, and s31 is an excpetional situation.


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## Vanilla (26 Nov 2012)

A judgement mortgage never gave an automatic sale anyway. One always had to apply for a well charging order. That is given at the discretion of the court. Under s.31 you also have to apply to court, the order is given at the discretion of the court. 

So where you said-more than once- on this thread that joint tenancy protects against a judgement mortgage, you were incorrect. Now you're backtracking and saying something else.


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## Time (26 Nov 2012)

And a judge would not grant an application where there was a priority mortgage in negative equity as the seeker of the well charging order would get zero. 

So many JMs just sit there for 12 years until they fall off.


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## Vanilla (26 Nov 2012)

Time said:


> And a judge would not grant an application where there was a priority mortgage in negative equity as the seeker of the well charging order would get zero.
> 
> So many JMs just sit there for 12 years until they fall off.


 
And if it were a family home, where there was no ability to pay...well the court has discretion there too. But the point is, there is no automatic protection just because there is a joint tenancy.


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## WizardDr (26 Nov 2012)

Xx


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## PurpleHat (26 Mar 2013)

*Transfer of land - joint built house.*

Sorry if this has been answered - but can't find it

7 years ago, my (now husband) and i built a house on a site that my husband got transfered from his father. This transfer was all  legally done at the time.  The mortgage is in both our names. 

I have been told that i should get the land transferred into my name too. What is the implication if the land is not transfered into my name ? - I thought  as we are married that this was not an issue. 

Thanks in advance.


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