House Sale
December 3, 2009 | 40,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
How long must be tolerated or what can be done
Description:
Married couple since 1994, 13-year-old son (14 years old in Jan. 2010)
He is a manager with a high income, she was a housewife for 10 years, now employed part-time
Shared property, approximately 200 sqm, approximately 800€ plot of land
Separation in February 2007, divorce petition served in February 2008
Divorce is not in sight, as she (perhaps understandably from her perspective) prolongs everything, does not provide any information, therefore delays and obstructs... unfortunately, this is possible in German law without penalty, the new regulations have not been implemented yet. Even the division of household items, many offers have been made where she can keep more than 80%, she is blocking it. The 20% are only items that the man brought into the marriage, but became part of the household items and are therefore subject to division.
He moved out of the shared house in May 2007, she has been living alone with their son (now 14 years old) in the house since then
In February 2009, she agreed to give the house to a real estate agent for sale, without success to this day.
The price has been gradually reduced until a threshold has been reached (remaining loan + real estate agent fees + prepayment penalties to the bank)
Offer from the man: from April 2010, transition to the remaining loan amount for one of them, real estate agent fees would be waived, prepayment penalties would be split evenly.
Additional offer to the woman: if she wants to take over, the man will take over the loan, the 50% prepayment penalties can be offset against the expected gain.
If he takes over the house, he offers that she can continue to live in the house for another 4 months to find a nice apartment in peace, but she would have to pay a monthly rent of 1000€. She will receive approximately 900€ more in maintenance from the transfer of the house to the man.
As a note: an agreement has been reached for current separation maintenance (marital debts or obligations were deducted from the annual income beforehand). Therefore, no calculation of the value of living space has been made in numbers.
She brusquely rejects all offers, as she does not want to make a loss or break even on the house. Arguments: it is now winter and it is difficult to sell a house (completely forgetting that the house has been on the market since February, so has been available for sale for 3 seasons.
Unfortunately, even according to the real estate agent, this house is very difficult to sell in the current real estate market conditions.
So what should be done to get rid of this burden. How long can the exclusive use of the house be possible without compensation and, more importantly, how long
Dear inquirer,
Thank you for your inquiry!
I would like to address your questions based on the situation you have described as follows:
1.) What meaningful steps can be taken to resolve this burden?
Ultimately, there are only two options. One is through mutual agreement, and the other is through enforcement against the other party's will.
In my opinion, the first option is the wiser choice for both parties. It would be in the best interest of both parties to attempt to reach a mutual solution to this problem based on their economic interests.
One possible solution could involve selling the property on the open market, renting out the shared property, sharing the rental income, or one party residing in the house while paying the other party for use.
The second option would be a partition auction. According to §§ 749,753 BGB, either of you can request a partition auction. In this case, the property would be auctioned off, and the proceeds would be divided between you and your wife. However, this is typically the least favorable option, as the proceeds are often far below the market value, similar to a forced auction. Therefore, a voluntary sale should be considered instead.
2.) How long can one spouse use the house without compensation?
Once one spouse starts living in the shared home alone, the other spouse who has moved out is entitled to compensation from the remaining spouse.
Below is a very informative link on this topic:
http://www.ehescheidung24.de/ratgeber/was_zu_bercksichtigen_ist_wenn_nach_der_trennung_ein_ehegatte_im_gemeinsamen_haus_wohnen_bleibt-214.html
3.) How long should the blockage regarding the sale of the house be tolerated, even though it may take a long time?
This is difficult to determine conclusively. You may consider applying for a partition auction (involving the mortgage-holding bank), but your wife may argue that she needs time to find a new place to live.
Given that she has a maintenance claim against you, she should be able to afford another place to live, so she may not necessarily need to stay in the house. She could potentially file a hardship petition against the partition auction, but cannot delay it indefinitely.
As mentioned before, the partition auction is the least desirable option but can serve as a form of leverage.
Alternatively, your wife could reach a mutual agreement with you, although based on your description, she may be hesitant unless you improve your offer, such as in terms of maintenance payments. This could be a point worth revisiting. If not, unfortunately, you will have to wait for the divorce with the delays your wife is already using.
Please note:
The legal advice provided is based solely on the information you have provided. My response is only an initial legal assessment and should not replace a comprehensive evaluation of the situation.
By adding or omitting relevant information, the legal assessment could change entirely.
I hope this information has been helpful. Please feel free to reach out to me through the follow-up option on this portal or via my email address.
Wishing you a pleasant Thursday afternoon!
Sincerely,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
