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Clare
Clare, Solicitor
Category: Property Law
Satisfied Customers: 34281
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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I own a property where my ex-wife and kids live. There is a

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I own a property where my ex-wife and kids live. There is a mortgage on it and I've recently completed three years of ancillary relief proceedings and there was no property adjustment because there is no equity and there was no housing provision made in the final order.
I want to allow my ex-wife and kids to live there until the youngest is 18 which is around 9 years away, but I want to have a rolling tenancy agreement which lasts for one year at a time and she would pay me a nominal maintenance of £1 p/y. I will mostly likely renew it for the next 9 years. I also want her to be able to cohabit with a new partner in the property but the new partner will need a separate rental agreement with me possibly as a lodger and he will pay 50% of the assessed rent.
I've been going through various sites that allow you to build up tenancy agreements but the situation above is non standard so I'd like some advice on what to call her tenancy and how to make it so as it only covers her and the kids and not just nominal rent for the whole property and anyone else she chooses to allow to live there. I also want to make sure that she doesn't get any inferred rights to live there by just leaving it as it is. I have filed a C2 as there is a non occupation order against me on the property from three years ago which I'm going to ask to be discharged and if my ex-wife will not sign then I'm going to ask the judge to sign on her behalf as it's this or I'm not prepared to continue with the mortgage and the house will if required be repossessed by the bank so it's in the interests of the children for a tenancy agreement to be put in place and give her some legal rights to be there.
Submitted: 2 years ago.
Category: Property Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question
My name is Clare
I shall do my best to help you but I need some further information first.
What is the exact wording of the Final Order made by the Court?
Clare
Customer: replied 2 years ago.

There were a lot of voluntary undertakings relating to housing I presented in person at the principle registry and decided after reading the draft order not to give any voluntary undertakings because they were not offering me an immediate clean break. So the order is very short.

1. Pension sharing ( in her favour )

2. Nominal maintenance of £1 p/y for life

3. Respondents capital claim, pension and income order stand dismissed

4. Applicants capital claims, pension and income are not dismissed

5. No order for costs under further detailed analysis

So essentially all my claims against her are dismissed but all her claims against me are left open but there is no mention of housing.

I've asked previous questions on housing but essentially there is a mortgage backed by a loan from an offshore bank. The interest on that loan is at HMRC's benefit in kind and get's repaid when the property is sold so it's in effect deferred.

Expert:  Clare replied 2 years ago.
Hi
Do you realise that if you try and do what you are suggesting your ex can simply go back to court?
Clare
Customer: replied 2 years ago.

I presented this case in person so I have a fair understanding of it. Yes she can go back at any time, the issue she has is that the situation will be the same except I understand the system pretty well now.

There are two options available.

1. A nominal yearly tenancy agreement for ex-wife and kids and a regular rental agreement for partner / husband at 50%.

2. I terminate the mortgage immediately and the bank will reposes the property and either set their own terms of occupancy or send the bailiffs to recover their property.

I am very generously in my view offering to allow my ex-wife to live in my house for several years for free however I want some legal agreement in place to govern that I really think that is in the interests of everyone involved.

Expert:  Clare replied 2 years ago.
Hi
How old is your youngest child?
Clare
Customer: replied 2 years ago.

9 so I'm looking at having the tenancy running for at least 9 years but maybe 12 if she is at university. I want the tenancy to run for a year and be renewable in case there are any issues that I can't foresee but it's fully my intension to provide housing for the ex-wife and children until they leave school or university. Beyond that I don't plan on making any housing provision for my ex-wife which would also be the intension of making it yearly renewable so as she doesn't inadvertently acquire some rights to stay which would then have to be dealt with by repossession and bailiffs.

Expert:  Clare replied 2 years ago.
Hi
Bearing in mind your success to date in protecting your interest in the property I have to ask - do you really wish to jeopardise this at this stage - do you not want to simply ensure that when the time comes it reverts to you and that is that?
I ask because acting as you intend at THIS stage could have the opposite effect to the one you are looking for?
Clare
Customer: replied 2 years ago.

I had thought the same as in there could be some aspect that I didn't know about relating to housing but then I thought that given the ancillary relief proceedings went on for nearly three years and she was fully represented if there was something that they could of done to force housing security for their client they would have done it by now.

Your right I don't want to just open up another can of worms however the point is that I am on good but not controlling terms with the managers at the offshore bank that hold the mortgage and I think that they must have realised that I'm not messing around when I say if there are issues I will terminate the loan the house will be repossessed and because the mortgage with the off shore bank is backed by an off shore company that is then backed by an offshore trust who don't care if they can't resell the property because it's been ordered to be transfered as they will just rent it out for the next 100 years. I'm not that fussed if the house does get repossessed and the offshore bank does set their terms as they will be surprisingly similar to what I'm suggesting it's more a convenience factor that they charge to manage the situation whereas I can deal with things like repairs or other issues myself but it's a matter of a few thousand a year with the result being less hassle for me but I will try to deal with this myself.

So at the moment she is there on I think it's called a "bare licence". I stated in writing to her that I'm happy for her to cohabit or remarry and her partner / husband to live there as long as he pay's me 50% of the assessed rent in a separate rental agreement and he should contact me and I'll get it organised with him. This point is non negotiable. I would like to for her sake as well as mine to define legally her occupancy status in a renewable tenancy agreement which is basically what my question is, what should it be called and how should it be structured as there are plenty of online sites that will create them for you but you need to know what to plug in.

Expert:  Clare replied 2 years ago.
Hi
You can create a Tenancy if you like - but she will not have to sign it and no court would force her to.
If you do arrange for the loan to be terminated - as you can do - then your ex will simply have to make a further claim against you - and you will of course have deliberately made your children homeless.
Alternatively you can leave things as the are until your youngest child is 18 and then Terminate the licence and force her to leave.
She will not have acquired any further rights in the property and since she will no longer have minor children - and with a bit of luck she will have a new partner (who you will have generously allowed to live with her thus cementing the cohabitation) then that will be it - no further worry of yours and your children will realise that you have been generous over the years.
However if that is not the way you wish to take it then you cannot create two different tenancies to run at the same time.
You will have to create a tenancy for your wife at a Peppercorn rent renewable yearly provided she does not cohabit, with a rent being charged when she does.
Whether or not she signs it will of corse be a very different matter
The Occupation Order will not be lifted irrespective of anything else
PLease ask if you need further details
Clare
Clare and other Property Law Specialists are ready to help you
Customer: replied 2 years ago.

This is effectively a new question but I've already described the situation so I'd like to tag it onto here.

It turns out the application for an occupation order was adjourned and never actually implemented.

So I'm now in a position where my ex-wife lives in my property under what I think is a bare licence. I would like here to sign a licence to occupy which would lay out basic things such as what she is responsible for and what I am responsible for and importantly it would recognise that she is there as a tenant and give an end date.

She is not communicating with me currently so I've asked her to reply by a certain date.

If she doesn't reply then is it possible for me to apply to court to ask them to intervene and possibly sign it on her behalf. The alternative is that the bank repossess the property which is not so bad an option for me as at least it's the end of a potentially on going headache but it will cost some money for the bank to get the situation all setup how they want it which will in the end involve some licence to occupy she will have to sign or leave.

Expert:  Clare replied 2 years ago.
Hi
Nothing has changed from the answer that I gave before - save that she would have to apply for the Occupation Order
Clare
Clare and other Property Law Specialists are ready to help you
Customer: replied 2 years ago.

I've spoken with the bank and they have said the same as before, they are happy to repossess and then they will decide what the licence to occupy will be and it would then be upto my ex to decide if she was happy to accept the terms or leave.

The downside of doing this is that it will cost a fair bit of money for them to do that.

So I'm back to trying to get this done myself for the next few weeks before I give up and let them take over. If I want to apply for an occupancy order on her behalf as in there needs to be some legal agreement that regulates her occupancy which form would I need to send to the court and is this the only way of doing this given I want her to live there with the children but my preference is to have a licence to occupy that she agree's to and signs.

Expert:  Clare replied 2 years ago.
Hi
Again I have to say this - you are happy for your children to lose their home?
Clare
Customer: replied 2 years ago.

I've not really explained the situation properly, I have spoken with the trust managers who provide the loan guarantee to the bank and they are happy to continue to provide the guarantee. So the bank will repossess the property and then approach independently my ex-wife and ask if she would like to continue to live at the property during the children's ( also beneficiaries ) minority but she will have to agree to a licence to occupy with the bank if she is to stay.

Expert:  Clare replied 2 years ago.
Hi
Why can matters not be left as they are?
Clare
Customer: replied 2 years ago.

She currently won't cooperate on getting repairs done to the property.

I want her to recognise that this is for a limited time as in until the children are adults.

So if we have an agreement of how her occupation is going to work, potentially I can hand it over to a rental agency and then I don't have to deal with her at all. As it is at the moment she is so random and basically does this I think for attention that it would cost a lot to pay some agent to deal with her. Getting an agreement in place would at least be a framework that she could understand what really quite limited things will be expected of her to continue living there.

It also means that she would be clear that she can't go an knock a wall down or do some alteration to the property that may damage it's value without my consent.

Expert:  Clare replied 2 years ago.
Hi
Has she threatened to make alterations to the property?
Surely the owner is responsible for repairs?
Clare
Customer: replied 2 years ago.

No she has not threatened to make alterations.

Yes I am responsible for repairs but when I arrange for a builder to come and do the repairs she just tell's them they can't enter.

The point is that it's gong to be a number of years before the kids are adults and I don't want to deal with her on this, I need to have an agreement on how things are going to work, hand this off to an agent who then manages the situation as per the agreement.

I appreciate this sounds bizarre as in surely we could have some verbal agreement on this but she is the kind of person who will create some crisis or drama out of nothing because that's how she likes to live her life which is fine, I divorced her and she can live her life as she likes but I don't want it affecting me any-more.

Expert:  Clare replied 2 years ago.
Hi
That in itself is not Unreasonable.
Have you been with the builders?
Clare
Customer: replied 2 years ago.

Yes there are internal repairs that need to be done, I've gone through the process of hiring builders and they've generated invoices etc and then at the last minute she just stops it.

I also don't think I'm being unreasonable but the tricky things is legally what is the best way to go about getting a licence to occupy in place. I'm happy to present in person and fill out the correct form to get it started but I'd like some guidance on which is the best way to achieve the goal as it seems like it's a situation that fall's between the cracks as normally the ex-husband is probably trying his best to get the ex-wife out of the property and she is trying to stay in whereas with this situation I'm trying to get her to stay in the property but just define the basis that she is able to do that so as it doesn't expose me to loss through trashing the place and make the property secure and habitable for her and the children.

Expert:  Clare replied 2 years ago.
Hi
Did you try and discuss this with her solicitors when she had them?
Clare
Customer: replied 2 years ago.

Yes I have I'm not sure if they are acting for her any more, I have asked and I've sent an email asking if she will sign a licence to occupy and copied her lawyers in but have not received anything back.

Customer: replied 2 years ago.

If she just won't sign and her solicitors don't engage I would like to in the mean time send her a letter stating that she should infer no rights from me temporally allowing her to stay in my property.

Is there any specific format for sending this type of letter and should I use a process server to serve it on her so as there is some court recognised notice that she has received it.

I can then figure out with the bank the best way forward.

Expert:  Clare replied 2 years ago.
Hi
We have come full circle.
You cannot call it your property or you will be back in the family court immediately based on that admission of control on your part
What is reasonable is for you to want to ensure that necessary repairs are done and the property kept in good repair until your youngest is 18 and your ex has to leave.
The way forward is to send a formal letter asking for her to chose one of three builders who you will then instruct to prepare a report on what needs to be done to the property so that it remains structurally sound.
IF she refuses to respond then you follow up with a letter confirming which of the three you have appointed and a date when the appointed builder will attend the property.
If she then refuses entry you can apply to the court for an Order allowing YOU to visit the property with a builder to prepare a schedule.
Since you will have behaved reasonable it will be granted
Clare
Customer: replied 2 years ago.

Thanks for the reply.

When you say "a formal letter" do you consider an email to be formal or do you mean a letter that is served on her by a process server as I think we've already got past the point where she has refused entry and I want to move onto applying to the court for an order allowing me to visit with a builder.

When you say a letter should be sent informing her that she should infer no rights from me allowing her to stay, should this be served on her and is there a particular way it should be written or followed or can I just write and tell her that specifically.

Expert:  Clare replied 2 years ago.
Hi
Did you offer her a choice builders.
If not then follow the process through and yes you must send letters
I did not say that you shoudl send the letter about her rights or lack if them - just about the builders
Clare
Customer: replied 2 years ago.

When I've sent her letters in the past by recorded delivery she just doesn't accept them, I've used a process server in the past and that seemed to work pretty well, cost me a bit but at least it got the job done. Is this what you mean, so a physical paper letter and then use a process server ?

Expert:  Clare replied 2 years ago.
Hi
Yes that is the best idea - it means that you have evidence that you did everything you could
Clare
Customer: replied 2 years ago.

This is a new question so please charge me but it's basically the same situation.

I gave a few years ago a general undertaking that I would not return, enter or attempt to enter my property.

I now need to enter the property up to a maximum of four times a year and I will give 48 hrs notice to inspect it and to organise people to carry out remedial work.

I initially sent in a C2 but the court has refused this because the original undertaking was not an order from the court. They then told me to seek legal advice on how to go about applying for a variation to this undertaking to allow me to carry out remedial work.

Expert:  Clare replied 2 years ago.
Hi
Why doe sit have to be YOU - why not an agent?
Clare
Customer: replied 2 years ago.

Cost mainly I don't want to have to pay for an agent. I have offered that if she was happy to pay for an agent and the work then I would not need to come in but I haven't heard anything back.

The other thing is that when I asked the builder to do the work because I was not able to be with him and diagnose what the problem was and authorise the work he wanted money up front.

When the builder was due to come around she refused them entry so I want to just be able to organise a time with the builder and know for sure that I'll be around there at the time and if necessary go through it with them.

There's no reason why I shouldn't be able to enter my own property, I want her to feel safe and comfortable which is why I am saying I'll give written notice and I understand that you don't want your ex coming into your house nosing around and I wouldn't allow her into my house but it's just the situation and unless she is willing to pay for it then I don't see any other way.

Expert:  Clare replied 2 years ago.
Hi
I am afraid that this is simply not going to be agreed by the Court given the strained relationship between you.
There is no reason not to use an agent - and you can be at the other end of a mobile phone for any authorisation required
It is simply not going to happen I am afraid
Clare
Customer: replied 2 years ago.

Agreed, what I've decided is instead of doing this I'm going to sell the house in two years, not tell her obviously and when it's sold if she wants me to provide a different smaller house she can agree to a licence to occupy or she can make her own housing provision, I think this is more than fair of me.

Expert:  Clare replied 2 years ago.
HI
That will not work - she will make a Children Act applictaion for you to provide a house until the youngest is 18
Clare
Customer: replied 2 years ago.

I don't really care if she does as at least then there might be some regulation over how she is going to occupy the property and who is responsible for what and for how long, at the moment it's just nothing which is why it cannot continue and frankly I think a judge will view it in the same light.

I have also thought about applying for an occupation order under section 35 for her but then I just thought it's easier for me to sell the property without her knowledge then just present the situation as do you want to do it my way in which case I will help or she can do it her way in which case I won't.

Both the children's act and section 35 occupation order can't be forced on me because of the way the mortgage is granted and maintained.

Expert:  Clare replied 2 years ago.
Hi
I am afraid that the Judge is not likely to do so - and you will have paid a great deal of money top end up in the position that you are in now
Owning a house that your ex can live in until your youngest child is 18
Clare
Customer: replied 2 years ago.

Your wrong on this and to be fair to you that's because you do not have all the facts available because I haven't given them all to you.

I asked a very general set of questions because I was not actually sure of what exact question I needed to ask, I am now and I've got the solution that I need and I thank you for your input.

Expert:  Clare replied 2 years ago.
Hi
Then I wish you luck - but do please be aware of the provisions of Schedule 1 of the Children Act
Clare
Customer: replied 2 years ago.

Thanks and yes I am aware of it.