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Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 23353
Experience:  Senior Partner at Berkson Wallace
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I have received a Part 8 Order for Sale on my jointly owned

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Hi there, I have received a Part 8 Order for Sale on my jointly owned property with my ex, it stipulates that she was to provide me with vacant possession forthwith (it was empty), however she has installed a friend into the subject Property without my consent. Apparently they moved in 3 weeks prior to the Order being made, and they appear to have fabricated a back-dated tenancy to "prove" it's legal, although it didn't stipulate a deposit, rent or period.How am I best dealing with this? It would appear there are 2 ways:
1. Enforcement proceedings against the Defendant
2. A Possession Order against the OccupantI believe my best route would be:
1x N244 enforcement against The Defendant
1x N244 application under 8.7/20.7 to make a claim against The Occupant and consolidate proceedings
1x N5/N121 Possession OrderWould that be your advice?

There are 2 potential defendants here, your ex for failing to comply with the court order and the friend for being in the property without your consent.

Enforcement proceedings against the defendant would involve the defendant applying for a possession order against the occupant unless the occupant decided to move out voluntarily. You would be better having two bites at the same cherry by issuing proceedings against both at the same time.

In respect of your 3 points “best route”, the 2nd point, the order is not actually against the occupant although they are in breach of it. Because the whole reason however is to get the occupier out I can see no reason not to do the three things you are suggesting let the court decide which one it wants to run with.

Customer: replied 7 months ago.
Hi Stuart,These are odd circumstances, the Occupant and Defendant are friends and the Defendant will not begin proceedings to remove them...I know that much.Sorry, that may not have been described well - the 2nd point is made specifically to allow me to bring a new party into proceedings under CPR 8.7/20.7 (I need permission to make a new claim as I have a Part 8 Order) and the N5/N121 is Possession Order against the Occupant directly.Your advice would be throw it all at the Court with a well-written cover letter and let them choose how they want to do things?
Customer: replied 7 months ago.
Further, regarding enforcement - could I ask the Court to order that The Occupant also provide vacant possession, then (assuming I'm not misunderstanding here - very possible) under CPR 70.4 I could enforce the Order for Sale against her as if she was a party?

Would begin proceedings to remove them. If you and the Defendant are not on good terms and the Defendant was aware that the proceedings were in progress, and that the order for sale was on its way, then the Defendant may have done this on purpose to thwart your sale or at least, to try to do so.

You need to decide what you want and then work out how you are going to get there while considering what is in the way.

You want the property empty.

The occupiers in the way so you need an order to get the occupier out.

The defendant put the occupier in so you need an order for the defendant to get the occupier out.

The defendant is in breach of the order the sale now but wasn’t at the time.

Ultimately all you need is the occupier out of the property.

Therefore I would submit all the applications, ask for them all to be heard together and let the court decide how it wants to progress it.

Enforcing the order for sale against the occupier is potentially an option but as you already have the order and she wasn’t party to those proceedings, you would need another set of proceedings because she would have to have the opportunity of defending them so I don’t think it’s an option.

Customer: replied 7 months ago.
what do you believe the occupants chances of success to be if they argue that they have a valid tenancy agreement with the co-owner the defendant prior to the order being made. I am making all payments for mortgage council tax and bills and neither of them have provided any evidence that any payments have been made for rent

I think there’s quite a reasonable chance that the occupier could say there was a valid tenancy agreement because the occupier may argue that the occupier didn’t know the property was jointly owned and have no reason to believe that was only reason why your ex should not grant a tenancy and indeed, about the fact the property was jointly owned prior to the court order, there was no order at that time.

At worst, I would think you would get a possession order albeit delayed.

The council tax should be payable by the occupier.

You can recover half of the mortgage payments from your co-owner..

The same with regard to the rent. However there is no rent noted in the tenancy agreement then there is no rent but that does call into question the overall legitimacy of the tenancy agreement and whether it is really a tenancy agreement, intended to avoid you getting the property sold or whether it’s actually just a licence terminal but on one-month notice. The title of the document on the paper is irrelevant. It’s what it is which is important, not what it purports to be.

Customer: replied 7 months ago.
If this helps:
1. The tenancy agreement looks freshly printed
2. The signature is not that of my ex, which I have on record from the Order for Sale proceedings
3. It doesn't stipulate a rent or deposit value, or a period (length of lease is blank)
4. The signature on it is not that of my ex, which is on record from Order for Sale proceedings
5. The signatures are dated the same day, yet my ex lives in Ireland and the house/occupant is in the UKFinally, I solely pay the mortgage, council tax, rent and utilities and have done for 5+ months, and we do not have consent to let from the mortgage provider.Does any of that have any bearing on the strength of that "tenancy agreement"?My largest fear was proceeding and losing, and being slapped with costs. Would a delayed possession still be seen as a "win"?

In any event, for logistical reasons you would be better using a local solicitor .

What has your Santa say about the agreement, if anything? Have you raised those issues with her?

The problem is that if your ex did this, the occupier can legitimately say that she had no knowledge of anything and therefore did not believe it was anything other than a genuine agreement.

I can certainly not think that you will get an order for costs particularly in view of the existing order for sale. A possession order delayed for several months is not at all unusual and would be deemed normally to be a successful application.

At the moment, I am assuming the occupier is not agreed to move out in 3 months. It would be worthwhile trying to get that and if you do get it, in writing, then delay making any application.

Customer: replied 7 months ago.
The occupier and the defendant are both not responding to my letters, emails or texts. I've asked for evidence of any payments made for rent, but have been give nothing.
There's nothing the Occupant could say that I could trust in terms of agreeing to leave. So today I issued proceedings, all 3 applications, this was 14 days after I sent them both a Letter Before Action.
I am also trying to push through a sale of the Property as I have found a buyer, but I suspect this will cause such delays as to lose them.

Beware of bombarding them with correspondence. They can allege that you are harassing them. Now is the time to issue the court proceedings and they are going to have to respond to that. If they don’t, then you will get judgement against them in default. That’s the situation you are in therefore I would do what you have done. I wouldn’t be at all surprised if this matter became quite protracted, particularly if they decide to defend the action although what defence the X could put forward, I have no idea.

If you could help me now please, in the way that I have helped you, I would be obliged if you could please use the rating service because that gives payment for my time and expertise here today.

If anything else crops up, we can still exchange notes. The thread doesn't close.

Kind regards.

Stuart J and 3 other Law Specialists are ready to help you
Customer: replied 6 months ago.
Hi Stuart,Quick question, well two - I also sought advice on Expert Answers, your image is identical to David Law on there - are you the same person? I only ask so I don't bore you with the same question from two angles.The Court has come back to me stating they won't accept two applications, and my asking them to decide was effectively a request for legal advice, and that I must choose one. Which would you pursue and why?

I didn’t even know that I had an image on here. So it isn’t. I am aware of the other website.

I will sort that. Thank you for letting me know.

Ultimately, you want the occupier out so it would make sense to proceed with that application.

Customer: replied 6 months ago.
Could I file to the local court for enforcement, then separately file for a possession order at the court house which serves the address. Which I believe the proceedings would be transferred to if it was defended anyway, what would the court look down on two separate sets of proceedings?

The ship has sailed on 2 sets of proceedings.

If your application for possession fails for any reason, you can then apply to enforce the order against your ex-partner.

Customer: replied 6 months ago.
Hi Stuart, I have been advised that as my existing Order stipulates "6. The Defendant shall deliver up vacant possession of the Property forthwith" that I am entitled to enforce that using N325 and a Warrant for Possession, and that the Warrant would be issued against The Defendant "and any other occupants" - what do you think of that approach?

I already thought of that. However the defendant is not the occupier, defendant is in effect the landlord.

I agree that the order is vacant possession to be delivered. Therefore, the next part of the process would be an application for a warrant of possession for the bailiffs to physically evict the defendant. But the defendant is not in the property.

Having said all that, you could always make the application and let the occupier convince the bailiffs that she is not the defendant and that the bailiffs deal with it. I think it’s 50-50 as to whether it would work legally but psychologically, bailiffs coming knocking at the door ready to effect the occupier is going to focus her mind that she has to leave the property.

Customer: replied 6 months ago.
Hi Stuart,Thanks for the response, this is all way above my pay grade - the Bailiff I was discussing it with mentioned the N325 and that if granted it would serve the address with an N54 granting authority to evict anyone on site, not just the Defendant.I was in the hope that this would then "turn the tables" so to speak and put the onus on the occupant to prove a tenancy or et out, rather than myself to disprove?Worth a shot? Or too risky? (unsure of how/if a counterclaim/costs could be made against me for enforcing the Order)

The former is the correct application for a Warrant for possession. There is no harm in making the application and if you get the order, let the bailiffs deal with it.

If you get the order, it doesn’t matter whether she has a tenancy or not, what she’s going to have to do is make an emergency application to set the order aside on the basis that she has a tenancy otherwise when the notice expires the bailiffs are going to turn up and turf are out.

Definitely worth a shot. I can’t see any major risk although you don’t know what the tenants going to do.

If it was a “definite no” I would tell you. I think it’s worth a go.

Customer: replied 6 months ago.
Hi Stuart,Ok, great - one final question. The Order was given in Hull, yet the Property is in Bolton, are they going to be able to enforce this, or am I to transfer proceedings?I'm confused as CPR 83.26(2)(b)(i) says that I MUST make this application in the same place that the Order was made, but I'm aware the Bailiffs aren't going to want to drive 2 hours to perform their work...Do I simply put "I understand, pursuant to CPR 83.26(2)(b)(i) and (3), that Hull County Court is the correct venue for this application, but that it may later on an application by the debtor be transferred to another hearing centre. " and leave it to them to figure out what to do with it?

If it is a national firm of bailiffs, they will have people local wherever you are.

I would get the warrant and then worry about the geography.

Customer: replied 5 months ago.
Hi Stuart, the plot thickens - I have my enforcement hearing on the 17th however (a BIG however) I am currently caring for my daughter and my ex left her facebook logged in on my daughter's iPad, revealing a whole conversation between herself and the Occupant where they forge the tenancy and otherwise work to undermine the Order. Can this be entered into evidence????

I apologise for the delay in getting back to you. As the thread is over 4 days old, I know longer get notification that your waiting.

You shouldn’t access anyone else’s computer because it’s a breach of the Computer Misuse Act although I have never known anyone actually be questioned or prosecuted for it except high-profile people in the newspapers although I seem to remember that was a murder case where journalists were prosecuted.

I wouldn’t worry about the fact that it’s illegally obtained, I would just use it because the court will allow it nowadays and have done for some years provided no one was coerced or threatened which is obviously not the case.