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Category: Law
Satisfied Customers: 33540
Experience:  Barrister at Self Employed Barrister
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My daughter proceeded a claim through the small claims court

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My daughter proceeded a claim through the small claims court against her ex as he had agreed in an email at the time of separation to pay half of the mortgage and all of the service charges on their property until it is sold.
He has defaulted on these payments and substantial arrears have accrued to the point where my daughter is facing possible repossession.
The judge ordered him to pay back partial arrears which he did not do in the time limit set. Whilst it was not part of the order, the judge declared that a binding contract does exist between them and he declared that my daughters ex should pay half of the mortgage and all of the service charge until the property is sold.
Our question is, " Are we able to enforce the binding contract?" He has changed his address and as our daughter lives in the marital property she is the sole point of contact for the mortgage company as he has failed to advise them of his current address.
Customer: replied 2 years ago.
They are now divorced as the Decree Absolute has come through. The mortgage is in joint names . The property has been on the market for two years but still has not sold.
You would have to take the matter back to the small claims court to get the 'binding contract' turned into an enforceable judgement - then obviously you would be able to enforce the judgment. Happy to discuss - please rate positive.
Customer: replied 2 years ago.
Can you advise which forms we would have to submit and what the cost would be please.
Customer: replied 2 years ago.
In you opinion how easy is it to get a binding contract turned into an enforceable judgement?
You would be bringing the claim presumably under the small claim on the basis of - which is really straight forward and the forms are online. If it is a binding contract then it should be straight forward. Happy to discuss. Please rate positive - thanks
Customer: replied 2 years ago.
Thank you , I will look into this .
My pleasure - can you rate positive - then still able to help - thanks
ivorylounge and 2 other Law Specialists are ready to help you
Customer: replied 2 years ago.
The court judgement states that a binding contract exists. This is at the top of the judgement as part of a declaration. Then the order part is at the bottom. My daughter thought this was all part of the order at the time of the hearing but obviously not. She will need to consider whether to return to the small claims court to enforce the binding contract.
That is correct - she needs a judgment for the sum outstanding.
Customer: replied 2 years ago.
How do we establish the sum outstanding when it is the mortgage. Can she only claim what is owed in arrears on the mortgage.
Customer: replied 2 years ago.
Could he be ordered to pay half the mortgage untill the propert is sold if it is proven that a binding contract exists between them?
Customer: replied 2 years ago.
She has approached the mortgage company regarding a cash offer on the property. If accepted this would create a shortfall. If he is legally bound to pay half the mortgage is this the same with a shortfall? Would he be expected to pay half of any shortfall?
It all depends on what is written on this binding agreement
Customer: replied 2 years ago.
I dont understand how we establish what the sum outstanding is.
Customer: replied 2 years ago.
The court judgement declares that they are jointly responsible to pay 50% of the mortgage and any arrears until the property is sold.Also that he is responsible to pay the maintenance charges /service charge on the property along with any arrears until the property is sold. Can this be enforced in one application to the small claims court?
Customer: replied 2 years ago.
We have already settled one lot of arrears over £1000 and the maintenance arrears have accrued to £1,700 approx. Can we make the claim based on these figures?
It is clear that there are ongoing debts - but you can calculate his half and what he has not paid to crystallise the debt at the time you apply to the small claims court - i.e. what he owes to date