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Well charging orders and orders for partition and sale of family properties are refused
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High Court refuse to exercise its discretion to grant well charging orders and orders for partition and sale of two family properties, on the grounds, inter alia, that: (a) neither spouse of the borrowers provided their consent to the mortgages; (b) in one case, there are dependent children residing in the property, and in the other, the borrower and his spouse are ill; and (c) both borrowers are in severe debt and the proceeds of sale due to their respective spouses would be insufficient to buy another family home.
Special summonses - well charging order sought - order for partition and sale sought - plaintiff is a Credit Union - defendants are borrowers - wives of defendants are notice parties - defendants took out commercial loans with Credit Union - respective family homes provided as security - neither wife provided consent to mortgage their family home - defendants unable to repay - s. 31 of the Land Law and Conveyancing Law Reform Act 2009 - within court's discretion whether to grant well charging order and order for partition and sale - court refuses to grant orders as: (a) the properties in question are family homes; (b) the wives never provided their consent for family properties to be used as security; (c) the dependent children of the first defendant live in their property; (d) both the second defendant and his wife are ill and; (e) both defendants are in serious debt and the proceeds of sale (50%) due to their spouses would not be sufficient to buy another family homes - orders refused.
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