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Helen Hill
Helen Hill, Lawyer
Category: Law
Satisfied Customers: 71
Experience:  LLB Law, Licensed Conveyancer and Probate Practitioner, Fellow of CILEx, Trust and Estates Practitioner (STEP)
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I previously asked regarding needing permission to rent my

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hi, I previously asked regarding needing permission to rent my property out being required by my ex in the Land Registry that his side have drafted. This lawyer says its standard, yet adds that if I am in a position to grant a lease, licence or tenancy on the property then I would likely be in a position to sell my property to release the monies (to his client/my ex). Which is why I do not want to add this clause to the Land Registry draft - because my ex would only block it. Also I am not in a position to remortgage on my current salary or move since I would have to move out of the area and my children go to school close by currently.Am I in my right to refuse this clause to be included? What argument would justify not including it?I should add that he is threatening to make Enforcement proceedings and that I would have to cover my ex legal cost for this, because I am seeking legal advise - is this permitted?I await your reply, many thanks

Thank you for your question. My name is ***** ***** I am a property lawyer so I might be able to help. So that I can provide a full response could you kindly advise if you know the wording of the clause that they would like added to the property title? I presume you and your ex partner own this property jointly and neither of you currently lives in it hence the request to be able to rent the property out to a tenant?

There may be further action you can take to protect your interest in the property and still consent to the rental agreement but I need this further information to be able to advise fully.

I look forward to hearing from you

With best regards

Helen

Customer: replied 27 days ago.
Hi Helen,No - I own the property, mortgage is in my name and live there with my children. My ex husband and I were married for 2 years and in that time he contributed to my extension works so therefor in my FDR the judge indicated he had interest in my property. As I am not in the position currently to buy his % out, a Charge Order was agreed for in 13 years when my youngest child finishes high school.The clause they want added is: 'Not grant or agree to grant any lease, licence or tenancy of the Property (or any part of the Property) without the applicants consent in writing.'
In speaking to a lawyer (on this site) previously they have said I should not need permission to rent out my property, so I asked for this to be removed. My ex's lawyer then refuted that by stating it 'is a standard clause within any Legal Charge that notice is given if occupier intends to grant a lease, licence or tenancy concerning the property. And further the reason his client (my ex) accepted a deferred sale was because it would preserve the former family home until our child is not dependant. Therefore if you (me) were in a position to grant a lease, licence or tenancy on the property then it would be likely that you (me) will be in a position to sell the property to release the monies to my client'.My argument is that I will not be able to sell, give him a % and then purchase within my area/school area and that I could do that once my youngest finishes her education (as per the Court Order) but not before because selling would mean moving and I cannot afford to purchase, nor can I afford to rent in the area a bigger place unless I receive additional income from my property to assist in a higher rent cost - hope that all makes sense!I do not want to add this clause because I know my ex will block it (me renting it out), which means I would be stuck in my small 2 bed home with my children (not enough space) which would FORCE me to sell for his own financial gain.I have been informed I do not need his permission, as his lawyer knows I am representing myself I need assistance to argue that this clause needs to be removed.I await your reply.Many thanks

Thank you for providing the further information. This does now make perfect sense and I can understand your predicament.

While the solicitor acting for your ex is correct that this is a standard clause it does not mean that you have to accept it. You certainly have an argument that your circumstances dictate that the clause is too restrictive to allow you to use your property with all the rights of a freeholder due to his limited interest in the property.

The reason behind using the clause is obviously because he has agreed to defer his interest while your children are still young and need to live in the property. It is quite normal for an interest to be deferred until the youngest child reaches the age of 18. You could argue that this alone is enough to secure his interest and that a restriction on renting out the property achieves nothing more as the value is not going to be affected by such a degree as to impact on his share.

Hopefully this gives you some information to be able to respond to their request but please let me know if you need any further assistance.

Kind regards

Helen

Customer: replied 27 days ago.
Could you explain 'that it does not mean I have to accept it' i,e push for it to be removed?My ex is very controlling and the only reason he wants me to get permission in writing in within this Land Registry is so he can continue to control my life/situation. I know he will not grant me permission out of spite, which is why I need help in arguing it to be removed.The Court Order is in place until my youngest is 16 (he originally wanted when she turned 7, in 4 years!!)Could you clarify what this means further that you wrote: to allow you to use your property with all the rights of a freeholder due to his limited interest in the property.Would me offering to keep 'occupier intends to grant a lease, licence on the property with consent' be a negotiating tool to utilise? I only care for the tenancy section, I'm not likely to grant a lease or licence to my home!Many thanks

Yes I did mean that you could ask for the clause to be removed. You are right that the inclusion is too restrictive which is what the second statement means. To have all the rights of a freeholder means that you should continue to have all the rights over your property that any other owner has i.e. the right to rent out your property if you choose to do so.

I don't think that dividing the clause would have any benefit and you should insist the whole clause is removed. The fact the Order is in place until your youngest is 16 is enough to protect his interest as he will be able to insist on receiving his money at that point whether it is in cash or by a sale of the property.

Kind regards

Helen

Customer: replied 27 days ago.
Thank you - his % is 47.5% after the 1st £100k is removed (my deposit I paid to purchase) - would that still class as 'limited interest' in the property.many thanks

By 'limited interest' I was referring to the fact that he is a beneficial owner and not a legal owner of the property as you are the full legal owner and he just has a beneficial interest. I hope that clarifies.

Helen Hill and other Law Specialists are ready to help you
Customer: replied 27 days ago.
Thank youCould I also ask if it is permitted for his lawyer to threaten Enforcement Proceedings and that I have to cover the legal fees, because I have sought legal advice (and updated him via letter of my intention to do so)His lawyer has stated my ex is a mortgagee on the property and therefore entitled to view any documents that he wants when requested. Is he a mortgagee by default of the Order Charge (not on my actual mortgage) and can I refuse based on the fact that he will not make any 'reasonable requests, since he is unreasonable and would take this opportunity to torment me and invade my privacy'?Could I state that while it may be 'standard terms', I have sought legal advise and been informed it is my right to request the tenancy/lease clause be removed (and then the reasons above)?Many thanks

Are they threatening to start enforcement proceedings simply because you have taken some time to get some advice and decide whether you are happy to accept the terms? This seems very unreasonable and unfair especially as you are representing yourself. Obviously his lawyer is being paid to do a job and put some pressure on in order to achieve the desired outcome for his client but you do have the right to have time to take advice.

He is only entitled to see documents that relate to his interest in the property or could affect his interest. If you tried to sell the property for example he would need to be notified as he may then be entitled to his 'share' under the terms of the Order. I would certainly suggest that you let them know you have taken advice and would like the tenancy clause to be removed for the reasons we have discussed. Especially as your ex's interest in the property is secured by way of the Order. The clause adds nothing to his security and restricts your ability to use the property in the interest of your children in the future.

Kind regards

Helen

Customer: replied 27 days ago.
because I have taken over the 2 weeks self imposed deadline his lawyer set to reply. Yet I sent 2 letters to state I would be in touch once I gain legal advice (after his follow up chasing letter). His firm are also bullies (as per my ex)Thank you, ***** ***** been most helpful indeed Helen.

I am very happy to help and wish you all the best with your response to them.

Kind regards

Helen

Customer: replied 27 days ago.
Sorry one more thing I need clarity on - you have written I am the freeholder (I assume because you think I live in a house) but actually its a split flat and I have share of freehold with my neighbour - again all in my sole name, not my ex husbands. Should I change to 'as share freehold' or does freeholder still valid? I just don't want to be tripped up by his lawyer. If I state share of freehold, would he misconstrued that it means shared freehold with my ex?
By the way, he did pay for the share of freehold cost, but again it's still in my sole name as I'm still the only name on the land registry as the home was purchased pre our relationshipMany thanks

No problem, it may therefore be more correct to refer to yourself as the 'legal owner' rather than freeholder.

Kind regards

Helen

Customer: replied 27 days ago.
Thank you!
Customer: replied 26 days ago.
Hi Helen, hope you're well today.I've been going over the response to my ex lawyer and I fear I will be shut down due to their argument that I can ‘be in a position to sell the property’ – which is not the case for me financially. How would you recommend I refute this/their argument?
I only want to have the possibility to rent it out for a few years whilst my children are in high school / college since there’s too much a big gap and they need their own space – eventually the eldest will leave home and I would then want to move back to my property to live – then remortgage to buy him out. Though he is banking on me selling, which I want to avoid.Their text:
And further the reason his client (my ex) accepted a deferred sale was because it would preserve the former family home until our child is not dependant. Therefore if you (me) were in a position to grant a lease, licence or tenancy on the property then it would be likely that you (me) will be in a position to sell the property to release the monies to my client'.Many thanks

Good morning, I think you have an excellent reason to refute their claim and the way you have explained it to me should be exactly how you respond to them. Something along the lines of:

In respect of your statement that I would be in a position to sell the property if I was in a position to grant a tenancy on the property I find this wholly inaccurate. Due to the size of the property it may not be suitable for me and the children to remain in the property during the entire deferred period. It may be that I was to rent out the property and use the rental income to contribute towards renting a larger property that might be more suitable for the children. Including the suggested term would greatly restrict my ability to ensure that the housing for my children throughout the deferred period remains suitable and appropriate for the children. Allowing me to grant a tenancy on the property in no way affects your clients security in receiving the funds and the end of the deferred period.

You can, of course, put it into your own words but I hope this helps.

Customer: replied 26 days ago.
This helps enormously thank you kindly

No problem at all.

If you are happy with the service I have provided I’d be very grateful if you could take a moment to rate my service.

Kind regards

Helen

Customer: replied 26 days ago.
One more question sorry! In your opinion, in my argument to removing his request to see paperworks etc whenever he requests - if I write the following: 'I do not believe that your client will make any reasonable requests on my property and would only seek to invade my privacy and try to torment me habitually.' and then go further that he's only entitled to see documents that are related to his limited interest etc - would my 1st comment be held against me / be deemed as relevant or be ridiculed etc?many thanks

Not at all; on the contrary I think it is important that you express how you feel your position would be exploited if the restriction was allowed.

Best wishes

Helen

Customer: replied 26 days ago.
Great! What happens if Enforcement Proceedings are issued?

If you are responding then it shouldn’t happen but if it does then please come back to the site for advice from a litigation specialist.

Many thanks

Customer: replied 26 days ago.
Thank you Helen!