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Chris The Lawyer
Chris The Lawyer, Lawyer
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Experience:  New Zealand qualified lawyer with 38 years of experience.
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I'm a NZer living in UK. I co own a house in NZ with ex

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I'm a NZer living in UK. I co own a house in NZ with ex partner. He still lives there and has lodgers. When I left we had lodgers and I made sure I had someone take my room to,pay my share of the mortgage and house expenses. I noticed after many months that my ex was taking money from joint account for personal use. I put a block on account so he couldn't access it. He opened another in his name and got lodgers to put money in the new account. I asked for him to send me weekly copies of it which he has. Now he has started taking mo ey again for his personal use and not replacing it. I got a legal document drawn up that essentially says he is responsible for paying mortgage eat and maintenance. But I can't stop him using the account t for his personal use. What can I do? Am I entitled to some share of the rent as well?
Customer: replied 1 year ago.
When he began taking money for personal use, he also stopped making any financial contributions as well.

I think the best way forward would be to get the property sold. You can force a sale under the Property Law Act or the Property Relationships Act and he could not defend this, except by buying out your share. You could in that proceeding in court require him to make full disclosre of the income from lodgers and account for the expenses, and if he has not paid his share then this could be deducted on a sale, from his share. You could do most of this without coming back to New Zealand, and certainly the application to court to sell the property.

In the meantime, if the mortagage and insurance are not being made, and if you dont want to force a sale you would need to bring a court case to specifically enforce the agreement about paying the mortgage, but of course the bank may foreclose if he doesnt pay. If the insurance has not been paid either i would pay that yourself to ensure the property is protected but you can recover that from him.

I would suggest you start by briefing a New zealand lawyer to write to tell him to perform his obligations under the agreement or be sued. If he ignores this, then instruct the lawyer to start. You would be able to recover most of your costs from him in this situation

Customer: replied 1 year ago.
The mortgage is still being paid and we have discussed selling in the spring time as it's usually a better time to do so. He has agreed to do so but I'm concerned that because he's not making one iota of financial contributions plus he's now taking money out to buy groceries, that he will drag the chain so to speak. Why would he live elsewhere when he's living in a lovely house not paying anything? One thing you need to know is that he is a recovering alcoholic and he has a terrible history with money. He accrued a huge debt using credit cards to pay the other off until they came to the end. He wanted me to use my earnings to get another loan to tack onto the mortgage to pay these off but I refused. Fortunately we never combined our personal money.
As far as the agreement goes he is still fulfilling the obligations to pay mortgage etc.
He's collecting board, not making any contributions himself plus using excess for personal spending.i can't stop this as explained previously. It appears that as long as he's making mortgage payments then I can't do anything to stop his personal spending as the account where board is paid into is in his name. At this stage it's not much but if the pattern continues where do I stand?
Can you tell me if his taking money for personal use has to be paid back by him? The way I see it is that essentially he is taking money which is partly mine. Is this correct?

Any income left over after payment of expenses, should be divided equally. There is another issue in that he has the benefit of the use of the property, and should therefore be paying occupational rent, which is a figure based on half the market rent for his use of the property, effectively the rent of your half share.

Any income however will need to be accounted for, when the property is sold. He can of course keep his half share, if there is anything left after payment of expenses, but this is just like any other investment which is jointly owned. So when the property is sold there will need to be calculations of the income you derive from the property and an allowance made for your share, which is likely to be the best way of ensuring that you get the money.

Customer: replied 1 year ago.
he hasn't paid any financial contributions since I left to come to the UK in Nov 2014. He's lived free. He pays his monthly mobile phone paid out of that account and now he's starting to buy groceries. ( which is what I discovered last year and put a block on our joint mortgage account). He did pay that back but now he's doing it again.
Is the occupational rent enforceable? If he doesn't pay anything yet has his monthly personal phone bill paid out of the income and now buying groceries, can I expect some reimbursement when the house is sold? Oh one other thing... When he opened another house account in his name, I asked him to send me weekly copies which he has but when I ask about personal expenditure he ignores me. Says him sending me these statements is a courtesy. I feel that as a co owner I am entitled to see copies of the financials of my property.
I now just want to make sure that when I next discuss with him that I have facts that I can bring before him so he is aware also of the details of his responsibilities in this situation.
Customer: replied 1 year ago.
Ps. When I was living there we both paid $150 pw each. (We lived as flatmates for a period before I left). Then when I left we put a boarder in my room to pay my share. My share is still being paid in by a boarder.
In the end, you need to ask for full disclosure of the money and the bank account, and then you can come up with figures for the division. Any income would go to overheard and then divided if there is any surplus. He cannot just take the money for himself.
Customer: replied 1 year ago.
I agree he needs to keep availing the statement to me so I can see what's going in and out. If he hasn't been making any financial contributions since Nov 2014 can I expect half of what he should have paid in when we sell? Is there some sort of legal enforcement that makes him pay his contribution?i.e occupational rent? i also agree he has no right to help himself to personal spending from this account without paying it back. Could I ask a solicitor write to him to make these requests? I mean what can I do . I feel so impotent.i need to have something to go back to him to try and find a solution to what he's doing.
I understand that. You will need to get a lawyer to negotiate any settlement agreement and the sale. Would you like a refrral and would you prefer any city?
Customer: replied 1 year ago.
please I would like a referral for a solicitor in Hamilton, Nz who deals with such matters.

Firm:Niemand Peebles Hoult

Address:PO Box 1028 Waikato Mail Centre
Hamilton 3240

Telephone:07(###) ###-####/p>

Fax:07(###) ###-####/p>



Chris The Lawyer and other New Zealand Law Specialists are ready to help you
Customer: replied 1 year ago.
I've gone through statements and to date He owes at least $860 for groceries he's bought and not paid back. That's what I know about. He's got numerous expenditure at Mitre 10 Mega but I can't disprove that as not being expense for the maintenance of the house. He also pays for his personal mobile phone out of that account.
Because he opened an account in his name after I blocked our joint mortgage account ( for the same thing) the account I don't appear to be able to stop him. Also you talked about occupational rent. The boarders bring in enough to cover mortgage and insurance etc and he doesn't seem to think he ought to pay " rent. When I first raised this with him in May last year he said that he's an owner so doesn't have to "pay rent". If all mortgage payments are made etc. Can he be made to make a financial contribution?
Customer: replied 1 year ago.
Can I send you a copy of an agreement made when this came up last year!

The concept of occupational rent is very well established in the Family Court. He has the advantage of living there, while you have to pay for your own accommodation. So whether he likes this or not, he will need to account for this on settlement.

You can send the agreement-please blank out the names and ID details

Customer: replied 1 year ago.
I'm not sure I can blank out names as its a photo but I'll try and edit it first and blank these out.

That would help

Customer: replied 1 year ago.
I've added files. Hope they come through.

That agreement does not appear to consider the issue of occupational rental. In a practical way, it may come down to whether you want to pay the costs of going to the family Court for directions about these things, but with the risk that the cost of going to court may exceed any benefit. Normally an agreement like this is a final and binding settlement, and it may be arguable that if occupational rent was not dealt with, then it cannot be claimed. But it is also equally possible to say that where the agreement is silent, the standard provision about occupational rental should apply.

Customer: replied 1 year ago.
Thank you. I shall go back to the solicitor that drew up the agreement and ask her. Would that be the way to go?

Yes, you should do that. She will have a better idea of the deal which was negotiated

Customer: replied 1 year ago.
I have another question in relation to the agreement I submitted for your perusal. Recall I told you that my ex was taking money from the account that rents are paid into and using it to buy groceries for himself and not paying it back. In clause 5 of the agreement it states that he is "entitled to retain all rents paid by other occupants of the property and to apply those funds in meeting rates, insurance,mortgage instalments and other outgoing so, and in maintaining the property"He is using the excuse of buying his groceries to say that he is buying cleaning products. I recall further back that you stated " he cannot take money for his personal use" or words to that effect. He ma trains
Customer: replied 1 year ago.
I'm sorry I accidently sent before I was finished.... I will continue...He states that "any costs"- I.e supermarket expenditure, " you see will be for household expenses- eg cleaning materials."
I recall further back that you stated " he cannot take money for his personal use" or words to that effect. He says based on clause 5 that he doesn't have to account for expenditure on the property. You also explained that any extra left over from the rents is half mine but he appears to be trying to spend as much as possible so I can't get any. He also spends a lot in Mitre 10 but I can't categorical state that amongst this is personal spending although I know there will be because it happened when we were living together and I agreed to it. Also he pays his mobile phone out of this. I don't have that luxury. I have to pa for accommodation and my living expenses, while he capitalises by using the account for personal expenditure, while not making one iota of financial contribution. He also fraudulently collects extra money in his pension for accommodation costs and prior to his receiving a pension I.e when he was on a benefit, yet incurs none of these costs.I look forward to your assistance.
It certainly appears he is spending money which is yours. That wording is clear and he must be able to show the expenditure was just for those items. The cell phone is definitely outside those guidelines. If he is claiming accomodation supplements unlawfully he could be prosecuted by WINZ.
Customer: replied 1 year ago.
Thanks for your confirmation of this. All the things that are mentioned on the list are being paid. But does that include the power bill as well? When we were together was fairly hefty. At the time I was also getting extra from WINZfor accommodation. I looked into getting boarders and I believe we were allowed two boarders which we took in. Upon my exit He took on another boarder to fill my vacancy so to speak so he has three boarders, pays his phone, TV, Power bill and groceries and no financial contribution. The contract also states the house has to be in the same condition as I left it and he has painted parts which I feel detract from its saleability. I saw the house in February and he assured me he would return it to its original colour. If I took the matter to the family court do you think I may have a chance to recoup occupational rent given the agreement? I wrote to the lawyer who liaised with his lawyer to fine tune the agreement to suit my side of things as did he. I have tried to engage her to see if there is a possibility of taking the matter to the family court. Or alternatively writing a letter to him to basically state that I am seeking legal advice and layout my concerns and possibly implications if he continues taking money from the account for his personal use, however she hasn't responded to me so I'm rather frustrated. He may try to argue that the account is in his name as I had the joint account blocked from him accessing because he was fiddling the books so to speak. But he shrewdly got round the situation by opening the account in his name and getting the boarders to transfer their funds into his account.Regards
You will need to consider what money you would get from a court process and the costs of doing this. This would include coming back to give evidence. But you should write to him setting out your concerns and explaining why you think his use of the income exceeds the agreed items.
Customer: replied 1 year ago.
I will submit his response to my last email and see what you make of it.Sent: Friday, 8 July 2016 4:48 AM
To: Alan
Subject: Re: This week
Thanks Alan,
Yes all well with me? Glad you enjoyed your trip to Chch and saw your new grand daughter.
Regarding this latest statement, you said that Yuriko is no longer going in with buying food and it's obvious she hasnt done this for a while. I'd appreciate if you stopped using the income from rent to,buy your groceries and just used your own money.His response:
"I have already explained that any costs you see will be for household expenses – eg cleaning materials."That way it keeps everything tidy. Also I would ask you to photograph receipts of expenditure with Mitre 10 and send to me. Sorry to be so pedantic but I need to see what is being actually spent on the house for maintenanceHis response:
"Refer to the agreement, while you are there and I am here looking after your investment the responsibility for meeting the payments for the maintenance of the property is mine, you will need to accept that the money spent is valid."and what is being used for personal expenditure. There is outstanding monies spent on groceries which will need to be paid back when the house is sold if you are unable to do so at the moment.His response:
" Really? Refer previous comment."
There needs to be a record of expenditure on the house.His response:
No, there doesn’t actually.If there are no records then it may end up coming off your share of the profits when the house is sold if you are unable to prove it was for the house.His response:
"No, it won’t, there is no requirement for me to prove."I know that not all expenditure at mitre10 is for the maintaining of the house.His response:
"That is a unacceptable allegation"and you need to consider that I am entitled to half of any excess of the rents which will be divided up when we sell.
I know it's probably not something you want to do but unfortunately records need to be kept so you can prove you have bought stuff for maintaining the property.His response:
"There is no requirement for me to prove. It's in your best interest to make sure you have proof of expenditure. Please do not patronise me or offer implied threats, doesn’t become you."
I'm sure you are keen to go through the process with as little hassle as possible.His response:
"Trust me, any hassle will be of your initiation."I was wondering about reopening the original mortgage account so I can access this with ease. What do you think?.His response:
"The current arrangement was instigated by your unilateral decision to block the account, I am quite happy with the arrangement, so no change."I guess I feel like I have to come through you all the time and you controlHis response:
"Refer the agreement you signed, clause 5. You did read the agreement?"what I see or don't see.His response:
"You see the account each week."I asked for KC and Yurikos tenancy agreement and you sent me them but you didn't have their email address on them.His response:
"KC:***@******.***, Yuriko:***@******.*** "You left their phone numbers but not their emails.
I have downstairs agreement and that was scanned from the original. Can you please do the same for the other two? They were scanned.His response:
"Note the different colours in the signatures."I would like to,have a scanned copy of the originals please. I'd,like to be able to,have the same access to important documents that you have.
Sorry you have indicated your dislike of this but unfortunately that's just the way it has to be in order to keep things fair.His response:
"Fairness requires only one element – trust. If you feel you cannot depend on me then you must find your own resolution within yourself."
You will need to decide how far you want to push the analysis of the accounts. You will be entitled to reconciliation of the amounts but if you go to the family court any advantage may be eaten up by fees.
Customer: replied 1 year ago.
Ok I accept that any advantage may be eaten up in fees etc. in order to tally up what's been taken, I need to be clear about what he can take from the account and what he is taking for personal use. Are you able to categorically state from the agreement what he's allowed and not allowed to take- well just what he's not allowed to take. I asked you earlier about him paying his personal phone bill and you said that's not allowed. His buying supermarket goods and the amounts clearly show he is not just buying cleaning products. I mean there are amounts for over $100 and I have to say I can't imagine anyone regularly spending large amounts on cleaning products. Prior to the agreement he spent weekly monies in the supermarket and I complained so he paid it back, something like $800-$1000.
Personally I don't believe he's spending the monies so often on cleaning products. He wasn't that into cleaning. Some expenses are in the Asian supermarket which dont even sell cleaning products.
I'd be grateful if you can advise me on the above so I can formulate a letter. Oh the other thing, the phone bill also incorporates internet so how can I get him to let me know what the costs of his personal phone bill is? There is no landline in the house just Internet.
You can check backwards by looking at the the rates, insurance and mortgage bills, and then he would need to justify what was needed for maintenance. Ordinary cleaning is not maintenance, and his phone and internet are also not covered. Certainly cleaning products are not part of that nor are Asian supermarket items.
Customer: replied 1 year ago.
Thankyou. Can I quote you please? Also can you suggest how I word a letter to him stating your findings in a manner that is factual and without emotive connotations.
You are free to quote me of course. The letter needs to state the facts, the agreement, what you think it covers and why you need an adjustment and proof of expenditure
Customer: replied 1 year ago.
Hi Chris,
I think I have dropped a bombshell.I wrote a letter mostly quoting you and I haven't heard anything nor have I been sent the weekly statement.I am now preparing a spreadsheet taken from all the statements since I left and I'm shocked to see more has been taken than I realised. There are several thousand dollars not been put in and several thousand taken for personal use.
What should I do now if he refuses to send me statements? I also quoted your words about him being prosecuted for falsely receiving money from WINZ for accommodation when he pays nothing.

Your next step may need to be the Family Court, unless he accepts the figures

Customer: replied 1 year ago.
I have another question, sorry. I have been keeping a spreadsheet of the finances and Alan's expenditure is running into Tens of thousands. This is money he has taken for personal expenditure e.g. Groceries and mobile phone bill. As explained he hadn't paid anything into the account on a regular basis. I wish to know that although the boarders have made payments which cover the outgoing expenses including the mortgage, should Alan also be making a weekly contribution for "occupational rent"? If I were there id be paying in - he would be expected to pay as well. But since I left and have a boarder paying my share of the expenses yet Alan isn't paying anything at all.
Customer: replied 1 year ago.
P.S I want to know if I can add his non payment of occupational rent onto the spreadsheet as an amount he owes.

He should indeed be paying occupational rent, which is the half share of the market rent for the property