• Looking for advice on how to sell joint property

I and My wife had brought a piece of land in Bangalore 3 years back, now we are separated but not divorced. We have taken the loan from the bank and from last 2 mounts we have not paid the loan. next month they are going to put the land for auction. she is not agreeing for the sale as well. 

what can I do to legally to stop the auction and How do I make my wife sell the property.
Asked 4 years ago in Property Law
Religion: Hindu

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14 Answers

This is a special form of joint tenancy when the joint tenants are namely the husband and wife with each owning one-half. Neither spouse can sell the property without the consent of the other.

Mohammed Mujeeb
Advocate, Hyderabad
19032 Answers
32 Consultations

4.5 on 5.0

You can stop auction by regularising account

2) request bank to reschedule loan account by increasing tenure of loan

3) if wife refuses to pay her share of EMI nor is willing to sell the property best option is that bank sell the property

Ajay Sethi
Advocate, Mumbai
89083 Answers
6362 Consultations

5.0 on 5.0

1. You can pay the dues of the bank

2. This will stop the auction sale

3. Then you will have to file a partition suit to claim your 50% share in land plus the money you paid to the bank which was due from your wife

4. Court will have the property sold and sale proceeds will be divided between you and your wife

5. Your wife's share will be reduced by the amount which she was supposed to pay to the bank but which you paid. That is, not only you paid your share in the loan but also your wife's share. This latter amount can be deducted from your wife's share of sale proceeds received on sale of your joint property

Yusuf Rampurawala
Advocate, Mumbai
6999 Answers
79 Consultations

5.0 on 5.0

Dear Sir,

You may deposit the claim amount and save the property from sale. The remedies as follows.

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Joint Ownership of Property

Differentiating co-owners and co-borrowers

Joint-owners or co-owners are those people who have a share in the said property. More than one person can be the owner of a property. Joint property owners most of the times are spouse or it could be parents, children or siblings. A property can also be jointly owned with anyone- it could be friends, colleagues, distant relatives etc.

While there are no restrictions in owning a property with anyone, joint home loans come in with certain restrictions. Banks do not sanction joint home loans for relations other than husband-wife, parents and children and in certain cases for brothers, provided they have joint ownership.

Co-ownership of property not is generally mandatory for considering the income of applicants for a loan. All co-borrowers are equally responsible for repayment of loan taken from the bank.

Who is liable to repay the loan?

The liability to repay the loan obtained lies equally with all of the applicants. For example, let us suppose that a working couple has applied for a joint home loan and after few years, the wife stopped working and the husband continues paying the loan EMIs by himself. Now if he had temporarily stops working due and the EMIs could not be paid, the bank serves notice for nonpayment against both husband and wife, as they are equally responsible for loan repayment.

What happens if you become a loan defaulter?

Once you become a loan defaulter, the bank will start the process of taking over your property. They can arrange an auction to sell your house/flat and recover their due amount. If you want to take any action, you need to take before this auction. Apart from this, your credit score will also be hit hard and you might not be eligible for loans in the future. This can be the worst thing to happen to you.

What are the options in this situation?

The best option for you would be to negotiate with the lender upon this. Banks will be ready to talk you over this issue rather than going through the tiresome process of taking over your asset. You can reach out to them with the past documents of EMI payments for this loan or the previous loans that you have cleared. Let us see what all options you have in hand:

1) Ask for a grace period - You can seek a grace period from the bank in order to continue with the EMI payments. You can clearly explain to them the reasons for not being able to pay EMIs such as loss of job or dip in sales of business, etc. Bank may be willing to give you the grace period for resuming EMI payments with some penalty.

2) Loan refinancing - There could be a case where the interest rates have gone up and hence you may not afford the increased EMI. You can talk to the bank to restructure or refinance your home loan. They can increase the tenure of the loan as a result of which your EMI would go down. Though this will result in you paying more, it will be better than losing possession of the property.

3) Counseling centers - There are counseling centers to help you with this issue. They would provide you the appropriate options based on your situation. They will also give you fair knowledge on the things to be followed so that you do not fall into a debt trap. Dena Bank has a credit counseling center which does exactly this.

4) Liquidating your investments - This will be the final step that you can resort to, if the above options do not work out for you. You can liquidate your existing investments such as deposits or mutual funds to pay the EMIs. You can also use this amount to make part payment for the loan which will reduce the EMI going forward.

Kishan Dutt Kalaskar
Advocate, Bangalore
6069 Answers
392 Consultations

4.8 on 5.0

You need to convince her that this is going to be a lass for both of you even if you are separated. You need to speak to the bank and pay the outstanding EMI to hold the action at the moment and get her agree to sell and take the share in proceeds.

Vimlesh Prasad Mishra
Advocate, Lucknow
6849 Answers
23 Consultations

4.9 on 5.0

Hello

You can negotiate with the bank for an OTS and if they agree then you should pay the amount and then sell it and divide the proceeds amongst yourselves.

Regards

Rahul Mishra
Advocate, Lucknow
13846 Answers
65 Consultations

5.0 on 5.0

Firslty, Sir, as it is in the joint name that means that there must be the clause as to who would pay the instalment out of two owners.

Secondly, and for the sale of the same you may have to go for an agreement between the person buying and bank that the amount be given to the bank by the buyer then it should be transferred to him.

Thirdly, is she doesn’t get agree to it then there may be problem otherwise it can be tackled.

Sanjay Baniwal
Advocate, South Delhi
5468 Answers
13 Consultations

5.0 on 5.0

Hello,

You may ask the wife to take the money that she has paid and then you may pay the loan to the bank and retain the property. If you want to stop the auction then you will have to pay the loan to the bank.

Ask your wife to relinquish her share in the property.

Regards

Anilesh Tewari
Advocate, New Delhi
17943 Answers
377 Consultations

5.0 on 5.0

As per sale deed this property amounts to joint property, with regard to due payment of bank loan, you have write to letter to bank under take to payment and to stop the auction. If your wife not ready to sell the property she comeforward to make payment of loan. If you want your share you will make partition and to get your share. If you want full property you have to file civil suit for declaration by prove contribution of full amount of sale consideration. All the best.

C. V. Jadhav
Advocate, Bangalore
545 Answers
18 Consultations

4.7 on 5.0

This is my response to you:

1. Seek more time for the court to pay the EMI (2 months is nothing);

2. In your divorce case, ask the judge to tell your wife to either pay the EMI or agree to sell off the property;

3. Tell the divorce court to expedite the hearing on the property because an auction notice has been sent;

4. The divorce court will pass such orders and then you can show it to the bank;

5. If the wife still refuses to pay then approach the bank and strike off name of your wife and you can alone pay the EMI;

6. Do it early as possible otherwise precious time will be lost.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

See if the property is mogaged with the bank it cannot be sold without NOC of the bank further you cannot force your your wife to pay the loan. So in that condition the bank shall auction the land and distribute the surplus between you two. Even you sell your share with permission and pay bank then also your liability for wife share will be there.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Client,

Is this auction is processed under sarfaesi act, if yes than file appeal before Debt Recovery Tribunal and get stay on auction.

Try to get POA from wife if she is not ready to be a part of sale.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1.you can contest the case and dragg the matter for some time. 2.when it comes to bank normaly nowadays they will opt Sarfaesi act proceeding. 3.after taking notices in the sarfaesi proceedings sec 13(2).13(4) go to DRT and settle it there. 4.if you keep quit the bank will sell the property after due procedure of sarfasi act and they may credit the amount if they sells in higher price . 5. so first speak,settle it with your wife and act accordingly.

Ghatti Uttam Nagaraj
Advocate, Vijayawada
9 Answers

Not rated

Once the bank has brought the property to auction sale then you have to decide to stop the same by ,making arrangement for payment fo the bank loan.

If you dont want to pay and also want to stop the auction sale, how do you think this is possible?

You may ask your wife to arrange for money to repay the loan amount even by installments provided the bank agrees for that.

What were you doing so far after receiving notice from bank about this ?

You could have spoken to the bank authorities at that time itself.

Now it may be too late even for any negotiations with the bank, however you may talk to them

T Kalaiselvan
Advocate, Vellore
79241 Answers
1618 Consultations

5.0 on 5.0

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