since your wife is co owner of flat you need her consent to sell the flat
you cannot stop paying loan EMI as it would be contempt of court
Sell or auction joint flat
Dear Sir/Madam, I need your advice on my divorce proceedings. I got married on May 2011. I filed divorce on Feb 2014 in Pune district court on the cruelty ground. Divorce case is still pending. My wife filed RCR in Aug 2014 in the family Court. Her father is retired DY SP. We had purchased a flat jointly. Somehow she got the possession of the flat at the time of filing divorce. Her maintenance got rejected in both the cases as she is earning. Family court asked me to pay full home loan emi I. e. 42600 because my salary was three times the salary of my wife. I appeal in the high court but did not change the family Court order to pay EMI. Later in the year 2019 her restitution case was dismissed by the family Court and also mentioned that I am not liable to pay full emi of the flat. Later she filed appeal in the high court against the family Court order. On the first date itself high court again asked me to pay full home loan EMI. Till date I have paid 50 lac to buy flat and home loan installments. Wife's share is around 10lac. We had mediation session last week, she is neither ready to give me divorce nor ready to settle flat ownership issue as she is earning money out of it. My application is in progress at high court to sort out Home loan EMI and flat possession. I want to sell or auction the flat. What are the options available to me. Thank you.
Asked 4 years ago in Family Law
Religion: Buddhist
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7 Answers
As your application is pending before the high court for possession of the flat, you have to await the final decision. Moreover, the flat being in joint names, you cannot sell it on your own, in any case.
Dear Client,
you do not have many options as the proceedings in the court are still pending and the property is jointly owned. Her consent is important so if she does not agree to settle and sell then, it is not possible.
Thank you
As the property is jointly owned moreover it is under home loan, you cannot sell the property unilaterally.
She has to give her consent for NOC to bank to return the title documents to you after discharge of home loan.
After that you can sell the property jointly along with her.
- Since , the said flat is in joint name , then you cannot sell the said property without getting her consent.
- Further, as the said application is in progress at High court , then legally you cannot take any step regarding the said property.
- Further, as her contribution is only 10% then you settle the dispute after paying her contribution to her , and also can file a declaration suit before the court for declaring the single owner of the said property.
If there is no stay from any court you can go ahead with the same otherwise not
Dear Sir,
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.
