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Ask Clare Your Own Question

Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33314
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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An ex-partner and I bought a buy to let property in 2002, for

Customer Question

An ex-partner and I bought a buy to let property in 2002, for £92,000. The property has been let solely by her since we split in 2007 for £700 per month. The mortgage repayment is £175 per month and she has been in charge of managing the property and has kept all rental income. She now wants to sell the property and I need advice on how to recover my share of the rental income and to get a contract in place for a 50/50 share of the profit as the property is going on the market for around £200,000. Please advise the best way to proceed to recover said rental income.
Submitted: 10 months ago.
Category: Law
Expert:  Clare replied 10 months ago.
HiThank you for your questionMy name is ***** ***** do my best to help you but I need some further information firstHow much is the house worth and how much is outstanding on the mortgage?Have you ever seen the rental accounts?
Customer: replied 10 months ago.
It's been put on the market for £200k current mortgage is £93k. Never seen the rental accounts
Expert:  Clare replied 10 months ago.
HI
Do you have any children together?
Clare
Customer: replied 10 months ago.
No Children
Expert:  Clare replied 10 months ago.
Hi
Excellent.
May I ask - why did you not chase the rental issue sooner?
Clare
Customer: replied 10 months ago.
Trusted her and thought the monies was going into an account. Apparently there's only £4K left??
Need a plan of action asap so if there's any more information you need pls bullet them in the next communication👍
Expert:  Clare replied 10 months ago.
Thank you for thatLast questionsDid she use a letting Agent - and do you hold the property as tenants in common (each own your own part) or as beneficial joint tenants (survivor takes all) If your contributions were unequal did you sign a Declaration of Trust?
Customer: replied 10 months ago.
According to her she has been, no signings of D.O.T and survivor takes all.Over to you👍
Expert:  Clare replied 10 months ago.
So far as a 50/50 split of the equity is concerned this is a given and your ex would have to go to court to get any more(and would fail)With regard to the rental monies as a starting point you need to contact the Letting Agent and ask for a set of accountsThey will say that they are not acting for you - so you will need to prove that you are a joint owner and point out that this is something they should have checked at the time of taking instructions.This will help you get some idea of the amount involved.In addition of course your ex would have to have filed tax returns in respect of the monies and you are entitled to see these.If your ex will not give the details then you have two options.You can make an application using Property Law - the Trusts of Land and Appointment of Trustees Act to recover the moniesalternatively you can make a calculation of how much she has made (allow for fees repairs insurance etc) and then sue her for half using the Small Claimsprocess and Money Claim onlineI hope that this is of assistance - please ask if you need further detailsClare
Customer: replied 10 months ago.
Pls advise re process I need to follow to make an application using Property Law
Also what are the standard/usual outcomes in terms of result when proceeding using either of the methods to reclaim rental incomes?
Expert:  Clare replied 10 months ago.
If you use property law it is a TOLATA application which would allow your ex to try and argue she should have a larger share of the property.However the process is set out herehttp://www.slatergordon.co.uk/media/2347003/land-disputes-a-guide-to-procedure.pdfThe other option is herehttps://www.moneyclaim.gov.uk/web/mcol/welcomeYour is an unusual case so outcomes are hard to predict - but you have a clear claim and should be successful
Customer: replied 10 months ago.
Hi unclear whether this TOLATA application relates to claiming back rental income as you've stated that it would allow my ex to argue a larger share of the property?Please clarify👍
Customer: replied 10 months ago.
Below is a response from my ex today after asking her to email me the figures re renting out our property...please advise best next steps"I have given you the figures over the phone and if you want any further information you can contact the relevant Management agents and call local estate agents. When we spoke last week and mutually agreed to sell I made it very clear to you that if we were to sell that we would have to act fast as not to lose out on the Investment buyers who will need to pay an additional 3% stamp duty in the new tax year. No one knows what will happen to the buy to let market after that. In addition the lease is getting towards the crucial 80 years. Despite agreeing to the renewal as yet you have made no contribution. As a result I have put the process on hold.I had made arrangements to get the property ready for sale this weekend if I don't have your decision to sell by this evening then I will cancel my trip and turn my hotel bookings into a mini break.
As I have said I am not prepared to mutually rent the property as I do not wish have everything fall on my shoulders and then battle to discuss things.
This will leave the property empty or if you would like to try rent it then once you picked up the keys from me you can go ahead and get it into a state to rent. There's a leak on the water talk, the door was damaged and has been removed and needs a replacement, the cupboard doors have all been removed as delaminating, will need replacing. The bedroom carpet needs cleaning, there are broken window handles and locks. Grout needs cleaning and possibly other cleaning. Needs a new fridge and quite possibly a new oven. When I initially got the property in order for its first rental I did this out of my own pocket, so it's only fair that you do the same.
If the property remains empty bear in mind that you are mutually responsible for mortgage, service, rent, ground rent, council tax and any other costs.
This is how it is, use this info to decide.
Kind regards
Sam "
Expert:  Clare replied 10 months ago.
A TOLATA application will allow you to ask the Court to allocate you a figure from the equity to cover the rental monies.However it will allow your ex to make a counter claim.Realistically it would be sensible to get the house on the market and argue about the rental monies later
Customer: replied 10 months ago.
Ok do I make the Application now whilst putting the house on the market or is there a mediation process that is available to resolve the rental monies issue?
Also you advise that she is obliged to provide tax return details. What do I do re escalating if she refuses?
Expert:  Clare replied 10 months ago.
I would suggest that you try mediation firstI would also suggest that you do contact the agents and start working out the figures yourself
Customer: replied 10 months ago.
To initiate the mediation process what steps do I need to take?
Also pls detail the steps I need to take if I wish to proceed using the small claims court or TOLATO application. The gross rental income is £76k less mortgage payments of £20k means it leaves £56k to account for.
Ideally would like to proceed during the sale before monies are allocated👍
Expert:  Clare replied 10 months ago.
You can find a list of local mediators via the website www.familymediationcouncil.org.ukYou need to do a little more work on the figures - you need to allow for the expenses of the letting agency, insurance, repairs etc - even if they are only estimates - that is why you need to speak to the agentsI have already given you the links to the relevant websites for both processes

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