Joint ownership
Abc
(Querist) 18 July 2012
This query is : Resolved
I and my mother are joint owners of a flat. In the sale deed it is mentioned 'half share' for both.
Could you tell me what are my rights with respect to this property?
(the flat is already registered in our names now).
Also there is a housing loan for this flat and we both are joint members of this loan. Is it mandatory for both members to pay the loan? - i.e. If I am unwilling to pay the entire loan amount, would my mother have to definitely pay the remaining amount(say half)?
Devajyoti Barman
(Expert) 19 July 2012
Both of you are joint owners of the flat in equal undivided share and both or either of you is liable to repay the loan.
Abc
(Querist) 19 July 2012
Ok. So let me ask this then:
1. Can anyone of us sell the entire flat without each other's consent under ANY CIRCUMSTANCE?
2. If I donot want to pay entire loan, as my mother is a 50% member of both flat and loan - Can I FORCIBLY make my mother pay half the EMI/loan?
Adv Archana Deshmukh
(Expert) 19 July 2012
None of you can sell the entire flat without the other's consent as it is jointly owned.
ashutosh mishra
(Expert) 19 July 2012
Q1. Can anyone of us sell the entire flat without each other's consent under ANY CIRCUMSTANCE?
A1.NO,not at all.
Q2. If I donot want to pay entire loan, as my mother is a 50% member of both flat and loan - Can I FORCIBLY make my mother pay half the EMI/loan?
A2.NO,You can not.
Abc
(Querist) 19 July 2012
So how do I get to make her pay half the amount?
Can I get her to pay atleast half the RENT that the flat can get?
(As right now I am the only person paying the entire EMI)
ashutosh mishra
(Expert) 19 July 2012
You can file a suit of recovery of EMIs paid on her behalf or of her share and can get her share in the house/flat attached for its' recovery.
Abc
(Querist) 19 July 2012
Thanks. I hope it means I CAN get her to pay her share of the EMI/loan SOMEHOW.
(also right now she is the only person residing in the house. I am staying elsewhere)
ashutosh mishra
(Expert) 19 July 2012
residing alone does not confer any exclusive right in her but as regards to suit you must file it within three years from the date of each EMI paid or should plead some oral agreement of understanding about the due date
fixed by her.
Before starting any litigation with her you must also know that if she is a widow or senior citizen then she has right to get maintained by you for her all necessities for which she or any one on her behalf can file application against you under Senior citizen maintenance Act 2007.
Abc
(Querist) 19 July 2012
I hope I am not bothering you.
But senior citizen = age>60?
And my father's still alive(but not working)
And my mother herself is still working, earning income.(Her age is less than 60)
Abc
(Querist) 19 July 2012
Also is there any way in which she can gain an advantage?
Like downpayment for the flat paid - I have to check the papers as to who paid how much?
Anything else.
Thanks for completeness of this query.
Anirudh
(Expert) 19 July 2012
Is there any agreement between you and your mother that she should pay 50% EMI?
Is there any agreement that she has to reimburse you the 50% emi in case you make the entire payment?
Unless there is such an agreement, you cannot force her to pay any penny towards EMI, nor can you ever be able to recover from her in case you make the full payment of the EMI.
At best, in case EMI is not paid either by you or by your mother or by both of you, the bank will take appropriate action to dispose of the property and realise its dues.
ashutosh mishra
(Expert) 19 July 2012
Is oral agreement in this regard not allowed Sir Anirudh?
Abc
(Querist) 20 July 2012
Till now there has been no agreement as to who would pay how much EMI/part of the loan.
Would I be able to make her pay atleast half the EMI if I file a suit?
Anirudh
(Expert) 20 July 2012
Filing a suit is very very easy.
But maintaining the said suit before the Court is very very difficult.
First the court will ask you, what is the basis for your suit / what is the cause of action?
What will be your reply.
Probably, you will say that she is also 50% owner but not paying EMI.
Court: Why she should pay EMI?
You: Because she is one of the co-borrowers.
Court: If she does not pay EMI, the lender will take action, why are you bothered?
You: If bank takes action and takes away the property, whatever I paid as EMI to bank will also go, so I will be affected.
Court: If you feel so, then you pay the EMI?
You: But she is 50% owner of the property. If I pay the EMI, can I recover from her?
Court: If you have any agreement with her you can recover.
YOU WILL BE BACK TO SQUARE ONE.
prabhakar singh
(Expert) 20 July 2012
When a co borrower stops paying or does not pay at all the EMIs ,then in absence of any agreement between them with respect to loan payment,the co borrower making the payment,as the circumstances suits,may/should exercise any of the following options...
KEEP MAKING THE PAYMENT,or
BUY THE CO BORROWER OUT,or
SELL THE PROPERTY.
Anirudh
(Expert) 21 July 2012
Dear Mr. Ashutosh,
Oral Agreement would be OK, but would be very very difficult to prove.
