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Ask Clare Your Own Question
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34105
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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, i have been divorced years i have 63% share

Customer Question

Hi,
i have been divorced for 10 years
i have 63% share in our matrimonial home which has a court order that should be sold, there has been tenants in the property and my ex husband has taken them to court, in which he has received possession of the property.
If i occupancy the matrimonial home what are my rights? dose the possession order app[y to me can he use it against me?
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Could you explain how the tenants came to be there?
Do you not wish to sell the property?
Clare
Customer: replied 2 years ago.

Hi Clare

I put the tenants in the property and yes I have marketed the property to be sold with a buyer but my ex husband did not agree.

he just wants to have full control of the property, but 63% was given to me & 33%to my boys who @ the time were under 18 years old but now over 18

Expert:  Clare replied 2 years ago.
Hi
How much is the property worth and how much is outstanding on the mortgage?
Is your ex still named on the mortgage?
Why do you not wish to have a sale?
When does the Order say that the property should be sold?
Clare
Customer: replied 2 years ago.

Hi Clare,

The property is valued @ £90000 the outstanding mortgage is around £650000

My ex husband name is ***** ***** the mortgage.

The order was set in 2009 but no set date for the sale to take place was given.

I would like to move back into the property with my son as long as the possession order dose not apply to me , what are my legal rights?

Bernie

Expert:  Clare replied 2 years ago.
Hi
When and why did you move out?
Clare
Customer: replied 2 years ago.

Hi Clare,

I moved out about one year ago due to me having a major operation and i needed the rent money to live on as I could not work and still not able to work.

Bernie

Expert:  Clare replied 2 years ago.
Hi
Who owns your current home?
Clare
Customer: replied 2 years ago.

Hi Clare,

I own my current home,

Dose it make any difference what I have?? We have had our financial settlement.

Bernie

Expert:  Clare replied 2 years ago.
Hi
In that case the court will order an immediate sale so that your ex can be released from the mortgage
This is why the fact that you own your current home is relevant
I am sorry - I know that this is not good news but the only reason that the court forced your ex to remain on the mortgage was to ensure the safe housing of the children - no longer necessary since you own an alternative property
Please ask if you need further details
Clare
Customer: replied 2 years ago.

Hi clare,

what if i want to be added to the mortgage so my ex can be released, so i can eventually live there with my son, as it is a more affordable mortgage then where i am living at the moment and struggling with my payments.

Bernie

Expert:  Clare replied 2 years ago.
Hi
Are you able to remortgage the property and release your ex?
Clare
Customer: replied 2 years ago.

Hi Clare,

Yes i can remortgage,

Bernie

Expert:  Clare replied 2 years ago.
HI
Are you sons happy for this to happen and will they be willing t come on the mortgage with you?
Clare
Customer: replied 2 years ago.

i will not want them to be on the mortgage, as they would not qualify. i would like the mortgage to be transferred to me by the courts.

but as my very first question was regarding the possession order in which my ex husband got against the tenants, would that apply to me if i occupied my previous matrimonial home which i have 63% share of.? also one of my sons who has as share of 33% would like to move into the house with me as he is homeless.

bernie

Expert:  Clare replied 2 years ago.
Hi
The court cannot order the transfer of the mortgage.
YOU will need to put in place a new mortgage which releases your ex.
Since your son's own part of the house then will either have to also be on the new mortgage or they will have to agree to the property being transferred into your sole name and for you to hold their share on trust for them
Since they are over 18 they will have to be actively involved in the discussions.
If you move back into the property with or without your son then your ex will still be able to obtain a further order to evict you as it is no longer a property that you need - you have shown that by living elsewhere
If you wish to keep the property then you need to pay off the existing mortgage as a matter of urgency so that your ex is no longer bound by it
Clare
Clare and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi Clare,

i have shown that i have lived else where but i can no longer afford to live there and i am i arrears and i was threatened with an possession from my lender, if i move back to the matrimonial home that has a more affordable mortgage, around £350 cheaper and start to make immediate payments on the mortgage what are my rights then?

Also since the divorce i have made and can prove all mortgage payments to the matrimonial account, only the last one year has not been paid since i moved out.

Bernie

Expert:  Clare replied 2 years ago.
Hi
You can certainly put that argument forward - but the chances of success are remote as there is simply no reason why your ex should still be tied to this mortgage
Clare
Customer: replied 2 years ago.

Hi Clare,

if i move into the property can my ex husband get a possession order to get me out?? also i have matrimonial rights registered on the property do they still remain all though we are divorced?

Regards

Bernie

Expert:  Clare replied 2 years ago.
Hi
Even if you move in there is a good chance that the court will order a sale and order that you vacate the property - but your interest in the property is secure
Clare
Customer: replied 2 years ago.

Hi Clare,

My ex has got a eviction date to get the tenants out with bailiffs, if i occupy the property before this date, when they turn up what can they do??

Kind Regards

Bernie

Expert:  Clare replied 2 years ago.
Hi
have the tenants left?
Clare
Customer: replied 2 years ago.

Hi Clare,

They are leaving soon but I don't want the property vacant, we are going move same day as they vacate.

Regards

Bernie

Expert:  Clare replied 2 years ago.
Hi
Then the Bailiffs cannot evict you at this point - but you may face a costs order later on
Clare
Customer: replied 2 years ago.

Hİ Clare,

Can my ex apply for an immediate eviction To get me & my son out?

Bernie

Expert:  Clare replied 2 years ago.
Hi
He can certainly make an Urgent application based on your ownership of the other property
Clare
Customer: replied 2 years ago.

Hi Clare,

If my property is rented out as i can not offerd to live there And have nowhere to go?

Bernie

Expert:  Clare replied 2 years ago.
Hi
That woudl be for the court to decide - but i suspect that you will not have the sympathy of the court
Clare
Customer: replied 2 years ago.

Due to the court order that the property should be sold, would the court ask for an immediate sale, and if so would I we be able to live there until it is sold?

Bernie

Expert:  Clare replied 2 years ago.
Hi
There is no way of telling - but in the circumstances probably not
Clare
Customer: replied 2 years ago.

Thanks Clare

Customer: replied 2 years ago.

Hi Clare,

The tenant have now vacated the property and i have moved in, the date for eviction is 16/03/2015.

legally what can happen to me on that day ??

Expert:  Clare replied 2 years ago.
Hi
If the bailiff attends you will need to show that you are an owner of the property
Clare
Customer: replied 2 years ago.

The court order which shows I have 63% share if the property once sold ,

Is that sufficient?

Expert:  Clare replied 2 years ago.
Hi
That and passport identification shoudl suffice
Clare
Customer: replied 2 years ago.

Hi Clare,

The Notice of Eviction is addressed to the named person on the tenancy and all other occupiers !!!! what can i do ??

Regards

Bernie

Expert:  Clare replied 2 years ago.
Hi
That does not change the fact that you are a joint owner and have the right to be there?
Clare
Customer: replied 2 years ago.

Hi Clare,

I am not on the title deeds it's only in the sole name of my ex husband

Expert:  Clare replied 2 years ago.
Hi
However you do have a court order stating your interest
Clare
Customer: replied 2 years ago.

Hi Clare,

The Notice of Eviction is due on the 16/3/15 and states that a possession warrant gives the bailiff authority to remove anyone still in the property (on the land)at the time of the evictions due to take place. And will change any locks,

is this allowed to happen with my interest in the property?

Kind Regards

Bernie

Expert:  Clare replied 2 years ago.
Hi
Has the Order been served on you?
Clare
Customer: replied 2 years ago.

Hi Clare,

It's served to the people name on the tenancy and any other occupiers

bernie

Expert:  Clare replied 2 years ago.
Hi
But were you given notice of the proceedings at all?
Clare
Customer: replied 2 years ago.

Hi Clare,

A copy which the the tenants received were put through the letter box

Bernie

Expert:  Clare replied 2 years ago.
Hi
Then you are going to have to apply to the Court for the Eviction to be stayed on the basis that you are now the only occupant and you are entitled to be there
Clare
Customer: replied 2 years ago.

Hi Clare,

Do i go to the court where the eviction notice came from?

Bernie

Expert:  Clare replied 2 years ago.
Hi
Yes
You can ask the court to suspend a bailiffs' warrant. You must apply to the court using court form N244. There is a fee of £50, but you may not have to pay this if you claim certain benefits or have a low income. See court leaflet EX160A for details.
If the court decides to consider if it should stop the bailiffs coming, there will probably be a short court hearing. This could even be on the same day that you apply. You should explain to the court why it would be fair and reasonable to stop the eviction.
the above is from the Shelter Site here
http://england.shelter.org.uk/get_advice/eviction/eviction_by_bailiffs/stopping_eviction_by_bailiffsClare
Customer: replied 2 years ago.

Hi Clare

can this be done online

Bernie

Expert:  Clare replied 2 years ago.
Hi
No you will have to complete it and take it to the court on Monday
Clare
Customer: replied 2 years ago.

Hi clare

I completed the form and had a hearing and due to me leaving and re moving into the matrimonial home the district judge said that my right of occupation dose not apply any more, is that correct?

and a eviction as been arranged for next Tuesday.

would it be possible to reinstate my right of occupancy as I have 67% share once the property is sold.

Bernie

Customer: replied 2 years ago.

Hi Clare

can I apply the eviction ?

Bernie

Expert:  Clare replied 2 years ago.
Hi
As I told you from the start this was always a risk.\
Unless you can show that you can remortgage the property so that your ex is released within say two months there is no chance that the property can be saved
Clare

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