Need legal advice on how to proceed with brother regarding our Combined, individual house

Question

► 3 years back Me and my brother took a independent g+1 house with equal down payments and Combined home loan with equal split of emi, we agreed to that orally and no written agreement was signed at that time. But now he stopped sending emi payment of his share from six months and forcing me to sell the house to another party less than the market value or demanding 50% of net value of the property as settlement to handover property to me. My concern is if I take over EMI handling as single owner for me is too much risky, as per general enquiry I made with bank new EMI will be nearly equal to 90% of my income. Arranged a meeting with our elders but they are suggesting to sell the property and bear the loss equally. How it will be justified? Because of my brother's incapability we are being forced to sell the house or I need to bear Full financial responsibility, where he want to exit with same amount as he paid. I'm continuing payments from 4 moths, 2 months pending payments are being followed up by banks and now they are threatening me with auction notice, my brother is not reacting and saying "I can't do anything , I'm in debts" . I don't want to lose my life earnings that I poured on the home. I'm even ready to sell the house but for justified share amount for me. Please advice me on this how can I proceed further....

Answer 1

Dear Sir,

My Honest Opinion

You have three realistic paths:

Negotiate structured buyout (best option if possible)
File legal notice + suit and protect share
Controlled market sale at correct price (not distress sale)

Do NOT:

Agree to undervalued sale

Absorb entire loss silently

Ignore bank notice

Answer 2

Dear client,

Since you both hold a home loan together, both your names appear on the mortgage, and both of you are equally responsible to your lender, so you will have no option but to pay either one of you the total amount due under the loan or lose the property through an auction, even if you have an agreement to pay only half of the loan.

In order to protect your interests, you should take the following steps: First, have your lawyer send your brother a legal notice requesting payment of his share of the EMIs and informing him that your brother's default on his share of the loan will cause you significant financial hardship. This will serve as a record of the fact that you sent this letter and your brother received it.

Second, if your brother does not pay you, you may file a lawsuit to recover any additional amount that you have paid to the bank on his behalf. If you do not prevail in this lawsuit, you may also file a partition action against your brother in which the court will determine how much of the property each of you will receive based on how much you both have paid to the bank and not just based on how much each of you own.

Third, if the bank forecloses on the property, you may be entitled to a higher percentage share of the proceeds from the sale than you would otherwise be entitled to receive because you paid more EMIs than your brother. When allocating proceeds from a sale, the courts will consider the contributions of each of you toward the mortgage balance of the property.

Finally, you should send a letter to your lender explaining the situation and requesting forbearance/loan modification/cancellation of your debt.

If you have any queries please feel free to contact us.

Need legal advice on how to proceed with brother regarding our Combined, individual house

2 Answers

My Honest Opinion