You can sell the property with consent of the spouse if she is a co-owner of the property. You both can execute the sala deed but if she is not agreeing to then you need to approach court for the same
My husband and I have decided to separate. We have a mutual property i.e. our matrimonial house where we both are residing currently. we have a joint loan on this property from HDFC bank. My husband is not agreeing to sell the house right away and he is not agreeing to take over the property and give me my share. Since we have decided to separate I want to sell the property and do not wish to keep paying the debt and staying in the property.In this situation, what options do I have legally if I want to sell the property as a co-owner?
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You can sell the property with consent of the spouse if she is a co-owner of the property. You both can execute the sala deed but if she is not agreeing to then you need to approach court for the same
File suit for partition for division of property by metes and bounds
2) if property cannot be divided court would direct sale of property
1. Mortgaged property CANNOT be sold without proper NOC from the lending Bank.
2. Jointly-Owned property CANNOT be sold without mutual consent and signatures of the joint-owners.
3. You have an option of filing for Partition of property in a Civil Court, for your purposes. However this will be a time & money consuming activity.
4. Another option is to buy-out each other's share and continue with the mortgage with the lending bank.
You may be the joint owner but since the home loan is pending and it becomes the responsibility of both to repay the home loan you may offer to pay the home loan entirely and then sell the property and allot him the sale consideration amount as his share after deducting his share of loan repayment.
You may file a partition suit also but since the proeprty is under loan, you cannot even claim your rights in the proeprty neither he until the loan amount is fully discharged.
You may mutually agree on this and talk to the bank manager about relieving yourself from the loan liability and the procedures to be adopted for that including the formalities to be complied in this regard and then take a decision which may be feasible.
Ask you husband to pay you 50% share, so you can transfer your share as a claim deed on his name.
Otherwise you can send a email a written application to bank that you want to sell the property and from next month you are going to stop EMIs if you are paying it.
First during pendency of the loan any transfer shall be required NOC from the loan provider.
Consent of both the parties shall be required to sell the property as a whole.
But you can sell your share to the property if any potential buyer is there to buy your share. These are subject to some limitations restrictions to the the buyer.
Alternatively you can claim partition of the property if it is physically suitable for a partition otherwise court may order for sale.
Are you separating mutually?
if yes then in the consent terms you can gift him your share in case you he is going to pay you alimony o maintenance or release your share In The said flat for a consideration.
See you can after release of property from loan can sale your share though pending your husband's share of loan it cannot be closed complete loan has to be closed. So you have to in this case wait pending the loan and then only can sale same.
How can you sell the property which is not yours. The property belongs to the bank and unless you pay the whole amount ie loan you cannot sell the property.
1. Since the flat in most cases is impalpable in nature, it is difficult to sell your half share in it though there is no legal bar in doing so.
2. So mutually settle the dispute or refuse to give him mutual divorce unless and until the share of your flat is sold out.
3. Otherwise search for the buyer who is ready t buy such property but likely on a distress price.
1. Property under mortgage cannot be sold without the consent of the mortgagee (bank).
2. Bank will not allow sale unless either the loan is repaid in entirety or on the basis of a tripartite agreement the loan is transferred to buyer.
You can sell your 50% share but since it is dwelling house, so without partition, outside buyer cannot live in the house. First partition the house and than sell it.
1. Mortgaged property can not be dealt with in any way without the consent of the Mortgagee.
2. So, you can not sell of your share of the said mortgaged property.
3. If you stop repaying your share of the EMI, then the said loan account will become NPA and the Bank will initiate SARFAESI Proceeding to sell it of to recover its dues.
4. The excess amount remaining after selling the property and recovering the dues will be equally distributed amongst both of you.
5. If your husband pays the EMIs and repays the loan account making the property free from mortgage, then you shall have equal share of the property and can file a partition suit claiming equal share of the property with metes and bounds which you can sell of if your husband refuses to buy the same from you.