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Stuart J
Stuart J, Solicitor
Category: Family Law
Satisfied Customers: 23781
Experience:  Senior Partner at Berkson Wallace
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I'm a co-owner of a property with my ex-partner. She moved

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Hi, I'm a co-owner of a property with my ex-partner. She moved out to her parents' house in January 2020 but still has access to the house and the keys and are stuff is still there. She is still paying for half of the mortgage but the home insurance policy that is part of the terms of the mortgage was up for renewal and she refused to pay. I want to buy her out soon but I'm still waiting for some paperwork. I warned her that if she didn't pay what she is liable for -half, that I would not sell because we would breach the mortgage agreement and damage my financial credibility to buy her out. Because we have2 young daughters of 4 and 6 years old, she threatened me that she will take me to court and claim that I'm stopping her from housing the children.We have shared custody. What does the law say about that because she is the one who wanted to break the agreement in the first place and I had to make a new home insurance policy on my name only, I asked her now if she would accept my buying offer and she said she will not be accepting 50,000 as she has higher valuations so looks like it will be going to open market?
I was just wondering if I could be accused of not letting her house the children by the court when she now asked me for 80k based on1 the valuation of 325k when I have 3 valuations of 280 to 290k.She said she will take me to court with an exclusion order.

Hello. Thank you for the question. It is my pleasure to assist you with this today.

Please bear with me as I will be online and off-line from time to time and therefore, may be delayed getting back to you. You will receive an email when I reply.

and the mortgage in both names? and why is she paying if she is not living there?

were do the children live and who is main carer?

are you joint or tenants in common?

Customer: replied 16 days ago.
mortgage is in both names. We started a bad custody battle in March 2020 that ended last month with shared custody. She refused to resolve the house situation until the custody was resolved.

A person is not responsible for the mortgage or rent or the bills of a house that they do not live in although they remain liable to the lender or landlord  if the other person stays in the property and doesn’t pay the mortgage or rent.

In that case, the non-occupier would be entitled to recover any mortgage or rental payments made by the non-occupier, from the occupier within the finances of the breakup of the relationship/marriage.

No one can be compelled to continue to own a property which they no longer wish to own and they are able to force a sale through the courts if necessary.

The remedy is to make an application to court for an order for sale under section 14 of the Trusts of Land Appointment of Trustees Act (the Act).

Anyone wishing to sell may find that a strongly worded letter from a solicitor threatening a court application and an application for costs, may focus the mind without actually having the need to get to court.

Check  house insurance to see if there is legal expenses cover that would pay for the legal cost of taking the matter to court.

The wording of the application is along the following lines:

Therefor the claimant makes a claim pursuant to s.14 Trusts and Land and Appointment of Trustees Act 1966 (TLATA) pursuant to Part 8, for the following

i   A declaration that the Claimant and Defendant are 50:50 beneficial owners of the property (or whatever percentage you are looking at):

ii  That the property be sold:

iii That there be an adjustment of the financial shares to account for the additional money spent by the Claimant in excess of the agreed £20,000 project fund, the council tax, electricity and occupation rent for the period of time the Defendant has enjoyed sole use of the Property.

iiii Costs

If I were advising anyone who has received a letter threatening an application to court under the Act and an application for legal costs, I would tell them to get the agents sign up immediately and cooperate with the sale because if they make the court application, they are likely to get it and they are likely to get costs awarded against them.

With children under 18 living with her, there is a good chance that she could get an occupation order to stay in the house until the youngest child reaches 18 so if you will agree to sell the property now and give you your hearth, then go for it otherwise you could end up out of the house and her living in it.

I don’t know where the valuations came from but you would normally take an average of three local valuations although these are extremely far apart.

Having said that, if anybody makes an application to court for an order for sale, the loser could easily be on the receiving end of a costs order for GBP30,000 or even more which is far more than the amount of money that you are arguing over.

Thank you for letting me assist you with your legal question.  I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards

Customer: replied 16 days ago.
Sorry I don't get it. I want to buy her out and she is refusing negotiation and said she is going for the highest offer.
She currently lives in a 4bed bungalow with her parents. The children live with both of us.I'm not refusing to sell she is adamant to go for open market and I don't want.

If it’s a genuine offer, then you are at liberty to buy the property on the open market by offering the same because that should save the agents fees.  So it really is a case of whether it’s a genuine offer and what she would get on the open market as opposed to what you would get based upon the valuations that you have.  Ultimately, the property sold for the best price whether it’s on the open market or to you.

Customer: replied 16 days ago.
I will contact the agent she claims that gave her the offer to make sure it is a genuine offer. Thank you

It was my pleasure to assist you. Please come back if anything else crops up and needs clarification.
Thank you for trusting Just Answer with your legal problem.

Stuart J and 2 other Family Law Specialists are ready to help you
Customer: replied 15 days ago.
Hello, I have a further question regarding the same issue. I'm living in the house with my children alone since January 2020. she still visits the house but it's the children's home. I want to buy her out but she is asking for an unrealistic value, so taking it into account that the children are leaving with me in the house 50% of the time and when they are with her they are in another house, at her parents' house, can I make an occupational order to remain living in my house and the children's house and that way force her to sell me her equity?

A person is not responsible for the mortgage or rent or the bills of a house that they do not live in although they remain liable to the lender or landlord  if the other person stays in the property and doesn’t pay the mortgage or rent.

In that case, the non-occupier would be entitled to recover any mortgage or rental payments made by the non-occupier, from the occupier within the finances of the breakup of the relationship/marriage.

You are living in the property, then you are liable for the whole mortgage.  You have the benefit of living in it and hence you have the burden of the payment.  Same applies in respect of insurance.

No one can be compelled to continue to own a property which they no longer wish to own and they are able to force a sale through the courts if necessary.

The remedy is to make an application to court for an order for sale under section 14 of the Trusts of Land Appointment of Trustees Act (the Act).

Anyone wishing to sell may find that a strongly worded letter from a solicitor threatening a court application and an application for costs, may focus the mind without actually having the need to get to court.

Check  house insurance to see if there is legal expenses cover that would pay for the legal cost of taking the matter to court.

The wording of the application is along the following lines:

Therefor the claimant makes a claim pursuant to s.14 Trusts and Land and Appointment of Trustees Act 1966 (TLATA) pursuant to Part 8, for the following

i   A declaration that the Claimant and Defendant are 50:50 beneficial owners of the property (or whatever percentage you are looking at):

ii  That the property be sold:

iii That there be an adjustment of the financial shares to account for the additional money spent by the Claimant in excess of the agreed £20,000 project fund, the council tax, electricity and occupation rent for the period of time the Defendant has enjoyed sole use of the Property.

iiii Costs

If I were advising anyone who has received a letter threatening an application to court under the Act and an application for legal costs, I would tell them to get the agents sign up immediately and cooperate with the sale because if they make the court application, they are likely to get it and they are likely to get costs awarded against them.

That’s what you could be on the receiving end.

My advice to you therefore is to make sure that she knows exactly where you are at your own mortgage application to pay her off.

The property is on the open market, then it’s easy enough for you to simply offer more than whatever anybody offers on the open market.  Just make sure that there is an agreement that if you buy her out, the agent doesn’t get paid anything other than and costs they have incurred in valuing and marketing the property.

You need to make sure that it’s blatantly obvious that you are willing to cooperate here, the only sticking point is the valuation.

Thank you for letting me assist you with your legal question.  I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards

Customer: replied 15 days ago.
Thank you for your reply but can you tell me about the occupation order, is it a possibility?

If Residence is 50-50, it’s unlikely that you would get an order for you to hang onto the house until the youngest child reaches 18

Customer: replied 15 days ago.
Ok thanks, ***** ***** just confused about why you mentioned that she could apply for one when we have the same rights and I'm the one living there.

Exactly.  You have the same rights and that includes financial rights.  The fact that you are in occupation is irrelevant.

Customer: replied 15 days ago.
Thank you for your help.