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Court in 3 days time!(27 Posts)
My application under TOTLA to try and force the sale of the jointly owned ex family home is finally being heard in a few days time. I have been waiting months already, was due to be heard next month but have managed to get it bought forward.
Anyway, I paid a solicitor to file the application but I can't afford to pay one to represent me, so I'm going to represent myself. Any help/advice or tips would be great. Apologies to those who have already heard this..
In short. Ex and I were not married, purchased property together as family home. Both on deeds both on mortgage. He moved out (his choice) and dumped me with full mortgage repayments which I couldn't afford. I was desperate to sell to free myself from the mortgage. He refused to communicate about it, ignored my letters and solicitors communication, refused to mediation to discuss a resolution, refused to pay a penny knowing I was struggling. Eventually (over 18 months later) I had to move out as couldn't afford the repayments. He carried on refusing to pay or discuss any resolution, so it stood empty with no mortgage being paid. Repossession proceedings kicked in and then he decided he wanted to live there. His sister paid a lump sum to clear the mortgage arrears and he has moved in (3 weeks ago ish).
Whilst it was empty I redecorated and did some minor repairs. Had valuations done and it should be about 10k in equity. Not a lot but it's something. He wants to remain living there and I want it sold.
The issue is with have 2 children, shared residency 50/50 exactly and a Shared Residency Order to reflect this. He is claiming to sell the property will make the children homeless (every other week of course, they still have their home with me) and therefore he is using the Children's Act to try and prevent sale until the youngest is 18 - AGES!
He is a financial screw up and always has been. I can see him abandoning the property and some point and dumping me with it again. He had just changed his job and taken a huge pay cut (he told me this) and I don't think he can afford the mortgage long term without hand outs from family. It's interest only and he wouldn't be able to afford repayment form his salary, so nothing will be paid off at all. PLus when interest rates rise (I believe they are due to next year or so) he would struggle.
I don't want to own a property with him, I wants to be free of this financial tie and the constant worry/stress that he will not pay mortgage and the implications it will have for me. He won't buy me out or ask someone to buy me out on his behalf, I think he likes it that it is very worrying for me to be tied to him this way.
Anyone tell me what they think my chances are of forcing sale? The children have another home, he could easily rent someone for the same-ish price of the mortgage, they children have only "lived" there for 3 weeks so not a long term permanent home for them. He'd get approx 5k (1/2 the small equity) so would have money for a deposit and a few months rent on top of moving costs etc.
Actually I think all your points are valid and worth making. This is not 'telling tales' - these are persuasive points supporting an argument. The only bit I would leave out is the bit about him rejecting social housing - the key point is that he would not be homeless because he can rehouse for the same money by renting.
I think (but I am not a lawyer) that you should come at it from a slightly different angle e.g.
The house should be sold because
1. The house is not the children's habitual home, and the evidence of this is
a) they only moved in there X weeks ago, after a 2 year absence
b) they spend 50% of nights at your house, which is now their habitual home
c) any other reason (all taken from the info on your list)
2. There are outstanding debts which both parties are responsible for paying, and the equity released by sale will allow this to happen, and for a clean financial break to be made
3. There is doubt that X has ability to afford the continuing mortgage payments because:
a) he previously almost defaulted, and only retained the house through a last minute payment from a family member
b) he has asked you to increase the mortgage length
c) you believe that his earnings have recently decreased
4. Mortgage payments are higher than suitable rents in the area, and therefore he would still be able to provide a 50% home for the children
You need to give evidence (e.g. dates, times, letters, emails etc. for everything on the lists, and for the debts, expected amount of equity release, current mortgage payments and local rents)
I wouldn't go into the details of him wanting to own rather than rent - that's neither here nor there (just shows that he's a twunt)
As I say, I'm not a lawyer, but this is a bit more clinical, IYSWIM
I think you need to stick to facts, people of the law are not interested in telling tales if it cannot be proven then don't bring it up.
Any other advice - can anyone comment on my list above to tell me bluntly what is/isn't reasonable to raise as objections.
Iheartdusty - I am really going to try and so my best with writing the statement, I thought, as you say, it's an important things and I do hope the Judge will read it all. So I will cover all angles and ensure I provide all the evidence I can.
I am worried about including things that a Judge will feel are petty or irrelevant and that it could l weaken my case.
MY main points are:
1. There is equity in the property and although it appears to be a small amount (perhaps 10k each) it is a huge amount to us and would make a huge difference to me.
2. He previously abandoned the property for nearly 2 years, ignored all communication and refused to discuss resolution.
3. He left it to the very day of the repossession hearing (the very hour) and then his sister paid off the arrears to avoid repossession.
4. The money, time stress and worry this has caused me, he could do it all again!
5. That he could rent in the local area for a very similar price to the mortgage. I have texts from him saying he can't find somewhere as nice and that he refuses to apply for social housing as it's "not good enough for him or his children" hence he NEEDS to live at the jointly owned property. Fake snob!
6. The mortgage is interest only and he has text me saying he can barely afford the repayments now asking me to sign to extend the mortgage. Interest rates will rise inevitably and then how will he afford it?
7. I have strong reason to believe his salary is now only part time, although I can't prove it - can I ask the Judge to order he provides proof of his income? I think his family are paying the mortgage for him, will this be a good reason for the sale and he should have to rent. My argument being HE can't afford it, why should I risk my financial security on his family's ability to pay, if he wants to do that then fine, rent, but I shouldn't be held on a mortgage.
8. Shared residency is 50/50, the kids have 2 homes. If sale is not ordered then in the future it goes to repossession again this could risk the children's home with me. It isn't the children's long term home, they haven't lived there for ages, he's only just thrown them back in there a few weeks ago.
9. From when the property was empty there are huge arrears on the Council Tax and Service Charge fee (monthly) these could be paid off with proceeds of sale.
10. Ultimately, sale would mean we are both free of financial ties, all debts paid off and he's have the money to rent somewhere else. I lose all the worry and stress of being financially tied to someone who is a financial screw up.
11. Oh and he has emailed me saying if we sell he will never be able to get a mortgage on his own and he wants to be a home owner. Yet he KNOWS we me tied onto this mortgage I can never get a mortgage with my current partner.
The Judge has given me dates for when I have to return my statement to them, serve it to ex and when he needs to return his response to them but she didn't mention he had to serve it to me, or perhaps I misheard. I assume now we've had the first hearing we will both get something in the post from the Court confirming the date of the next hearing (I've been told it won't be before mid December) and that will have all the various deadline dates on?
It's reassuring to know I will have his statement in advance of the next hearing so at least I can prepare some notes / take some evidence that he is lying.
I know ex will have weeks to look at it and I was worried he'd have time to prepare a good response (lies!) and then I wouldn't be hit with his response til the day of Court, but it's good to hear that.
Collaborate - Of course! I didn't think of that, I guess they have records of the last valuations and can just amend them a little based on their knowledge of the increase in the market, nothing has changed with the property (except it's now occupied by my awful ex)
For the valuations I suggest you go back to the last valuer and ask them to do a paper revaluation. they shouldn't need to visit again.
Put everything in your statement. It will do the talking for you, plus then at hearing you get to emphasise the points you want to make and challenge what he has written.
yes, you will get his statement in advance. The order might say he has to 'serve' it, that means send it to you.
I would not worry too much about getting updated valuations within the 3 weeks. Provide what you already have. Say what you have observed from Zoopla, and why you think the value has gone up. Carry on with the request for access for up to date valuation, but focus your effort on making your witness statement as accurate and thorough as you can.
Thanks for your post tinyturtle. I know he shouldn't change the locks, I too thought it was "illegal" but it's not. It's a civil matter and the Police will not get involved. However I don't know exactly what legislation covers it as such.
I could get a locksmith to break in for me, but that would cost a pretty penny and I would need to provide him with a set of the new keys as he lives there. Trying to get him to do the hard work without me paying out a fortune would be much better for me
I think it is illegal for him to change the locks on your property.
You would be within your rights to get a locksmith to letyou in if it is illegal.
UPDATE.. HAD THE HEARING THIS MORNING
Thanks everyone who gave advice.
I went to the hearing this morning and it was far less daunting than I had expected. My ex did not show up and I was told he had no even filed a response or even acknowledged the papers, despite having been served months ago.
Anyway. It was over in 5 minutes. The Judge asked me to briefly explain the situation and confirm a few key details - who's on the mortgage, who's on the deeds, amount left on mortgage etc. She has given me 3 weeks to file a full statement with evidence (mortgage statements, land registry deeds, valuations and any other documents I feel relevant). I didn't get chance to say much else so have a few questions if anyone knows...
1. Judge said my statement and evidence will be provided to my ex who will then have 4 weeks to prepare his defence statement before the next hearing. Do I get a copy of his defence statement and evidence he is providing before the hearing? Else I feel I will be really put on the spot and I just know he will come up with a pack of lies!
2. MY valuations were done months ago. I believe they will have gone up (checked sale prices for local properties and Zoopla estimates and it appears the market is doing well). I want up to date valuations. I requested a key for the new locks and ex said he wouldn't provide one. I need access to the property for valuations so was going to write a polite letter, giving 14 days notice and asking him to provide a key and a day/time he is happy for me to enter the property for a few hours to have 3 estate agents value it. Am I legally entitled to do this providing I give him plenty of notice (I have only been given 3 weeks so needs to be soonish). Any particular piece of legislation I should quote which covers my right to enter the property as a joint owner for these sorts of things?
3. I believe his pay has taken a significant decrease in the last month or so, but I do not know for certain (his working hours have certainly reduced). Can my solicitor contact his employer asking for clarification of his working hours/salary for me to prove he can't afford the repayments without family pouring money at him. Or is that personal information only to be provided at the request of the Court? (I suspect so)
4. Should my statement be concise and perhaps in bullet points or my full statement with all my relevant arguments explained in full? Ie are they expecting a one page typed document or is it ok for the statement to be pages and pages long?
Ah I see, thank you.
Originally I agreed to move out. He then said he couldn't afford the mortgage repayments unless I helped him (whilst having to pay for my own home elsewhere) so he movd out. I lived there alone for about a year struggling to afford the repayments trying to communicate to sell it, he ignored all attempts. I moved out after a year as I had no choice I oils by afford it, needed a stable home and it didn't seem as if e would ever communicate. I thought if it were empty and mortgage by being paid he'd reply and agree to sell. He didn't. It stayed empty for almost a year and he moved back in a few days after the repossession hearing. He didn't pay a thing to stop repossession until the hearing was already happening (ie he called up and paid and said he was moving in whilst I was actually sat in Court) the Judge had ordered repossession before he got passed the message that the arrears had literally just been paid! So repossession was cancelled. It's like it's a game to him, upsetting and stressing me
Clearly not going to be straightforward - you also cannot expect it to be sorted at the first hearing. If he sticks his heels in there will be various hearings ....
I meant it's better for you that he moved out first, then left the property empty for a while after you moved out, instead of it being you who moved out on separation. It's as if he's doing it to be awkward. He's already rented somewhere else since separation presumably.
Thanks for your message too Collaborate. Again it's nice to hear I do have a chance, however slim.
My solicitor gave me a quick call this evening with a few tips, try and remain calm, look reasonable, make sure the Judge knows the full back story ie that he has only just moved in after refusing to communicate for almost 2 years etc as she also agrees this is my strongest argument, that he is financially unreliable and trying to control me by refusing to sell the property. She also told me to ensure I let the Judge know that I don't want to cause him hardship, he can rent nearby at a similar cost, the children won't be homeless etc.
Can I ask why you think the fact that he has moved back in there may go in my favour? As I assumed it would only ever go against me.
I agree that you may have a chance to force through a sale. However the court can delay a sale on a TOLATA application just as much as a Children Act application.
The fact that he appears to have moved back in to the property may go in your favour, as may the fact that you are both in the same boat in so far as the children's residence is concerned.
Thanks Fuckwittery. I really do appreciate your advice, I understand it's not your area of law so I know I should really be talking to my solicitor about it but it's just so expensive. Every call / email etc is racking up hundreds of pounds and I think I'm just so worried I will have wasted time money and energy on this only to be told I have no hope.
I will be disadvantaged by no sale, I can't get at the (albeit) small share of equity unless we sell, I have the constant worry of him abandoning it or not being able to afford repayments once the interest rates rise. Plus if it screws me up financially I risk not being able to pay the rent on our home now which the children also live in 50% of the time. He could rent elsewhere & provide a home for the kids, it means them "moving" but they've only stayed there a few weeks so hardly "home" to them.
I am comforted to hear that I may still have a chance, I am going to represent myself tomorrow and then save the money I (don't really) have to pay for my solicitor to attend the final hearing as it seems that would be money best spent then rather than now.
He needs to make a formal application under schedule 1 if he wants to rely on it, and pay a court fee. I do think the circumstances you have explained sound v strong reasons for sale now, its not a case where the weaker financial party is housed in a property and wont be able to rehouse the children similarly if sale takes place now. You may be greatly disadvantaged by no sale and it seems the only benefit is that the children will live 50% per cent of the time in an owned house rather than a rented property and I find it hard to see the court thinking that benefit (if it is a benefit) for the children should mean you be kept out of your money now. He could of course buy you out. Obviously you have a solicitor so should be asking her these questions, but as this is just a first hearing perhaps save your money for advice until after the hearing.
The other lawyers on here may have perspective to add.
Perhaps my first post was a little unclear tinyturtle, the children are primary aged still- I'm worried he won't agree to sale until he has to using the Children's Act to not sell until yougest is 18.
As far as myself and my solicitor are aware, he hasn't filed a response at all, so don't think Schedule 1 application has been made at all. My original application included a request for him to pay my costs to date due to total lack of response for almost 2 years- Im hoping the fact he now lives there just before the hearing doesn't stop costs being awarded to me, as they've obviously been paid out over the last two years regardless of him now living there.
Can I ask your advice? If (when) we get to the final hearing- he will obviously use Schedule 1 Children's Act to try and prevent sale- how strong an argument is it when it hasn't been the children home for over 2 years until the last few weeks/months by then and he could live elsewhere for the same monthly costs (mortgage interest only so not progressing/paying off any debt at all anyway) they wouldn't be homeless. Plus the children have a home with me too (50% residency).
I don't have much hope to be honest I just want to be free of financial ties to him as its dragging me down and a constant worry- shame he's such a financial fuck up!
My knowledge of TLATA claims procedure is a bit rusty, but based on schedule 1 knowledge, and family court knowledge, no final order would be made at a first hearing unless you agree I'm afraid. If he doesnt show you need to stress how he hasnt corresponded, participated at all, and ask for directions to be made to formally file evidence and timetable the case to final hearing so at least you are making progress without him. Judge will be v unimpressed that he hasnt turned up to progress his own schedule 1 application, but whether or not any sanctions will be taken or not at this stage I don't know. You'd normally get costs if he didnt turn up, you could give costs of solicitors's communication today, and any travel/time off work costs you've incurred if he didnt show. That is a rather shocking wait for a first appointment!
Hang on, how old are the children? You say up post youyoungest is 18?
Sorry forgot to say - this is the first hearing (months and months of waiting, I filed the application almost 6 months ago!)
I haven't filed any evidence just the application form, but that explained his disappearance for nearly 2 years and that it had been empty for a year. When I applied it was empty and he made no mention of moving back in until about a month or so ago.
My solicitor said he did not respond to or acknowledge the papers he was served, so I'm hopeful (unlikely but hopeful) he won't turn up to the hearing on Wednesday - do you know if this will go in my favour?
I have gathered as much "evidence" as I can to take with me which includes:
- 5 letters from my solicitor to his solicitor and subsequently him direct when his solicitor stopped acting for him. All attempting to resolve the property, explaining it was in arrears etc. All were ignored. These span 18 months.
-An FM1 form, on advise of my solicitor we attempted to initiate mediation session- but he refused to respond to mediation company. I paid for an appointment and to get this form to prove I had tried.
-Recent-ish valuations showing the property's value (and a print off of an estimate on Zoopla) to show it has increased in value a lot recently and should give us a few thousand each - so he can afford a deposit and months rent in advance.
Rent is expensive in the area but to rent a similar property within say 2-3 miles would be around the same cost as the current mortgage repayments and ground rent/service charge. Mortgage is interest only and when interest rates rise (as I have been told they inevitably will) I have doubts he can afford it. I went onto Right Move earlier and printed off some just to show they are as affordable as the jointly owned property and so a definite option ( not sure if the Court will care though).
I paid for minor repairs, decorating etc, more time than money. However he (sister) has recently paid all the mortgage arrears to stop repossession - the fucker ignored the property and all my attempts to communicate for over 18mths and left it to the very morning of the repossession hearing to clear the arrears in the hope I would panic and pay it off I guess, the shit and stress that put me through was awful
- I would love to buy another property with my new partner in a few years time when I go back to work. It would have to be based on both our salaries though, I guess I wouldn't get another mortgage if I'm held onto the one so ex can live there.
My solicitor seems to think my chances are slim because of our shared residency and the children are both young (primary aged).
It also prevents you from getting another mortgage as although he can indemnify you from the payments (promise to pay them against any claim from mortgage co), your name will be still be there unless he earns enough to get you released
Have you filed all evidence and is this a final hearing or an initial hearing ?
I think court would want to see evidence of
How much rent would he pay to rent somewhere similar, with property particulars
Has he enquired about releasing you from mortgage, what is the answer if so
How much you paid while he was out of property, mortgage and repairs
Correspondence trying to get him to sell
At court I would focus on the points you make in your last paragraph, he can rent for the proceeds of sale,/ same cost as mortgage, so children will not be without a home, where is the advantage in keeping you out of your share of the property?
Thanks for your post.
I had a brief telephone call with my solicitor today as I felt I needed some legal advice, although couldn't really afford it - even a telephone call will cost a fortune.
Basically, I've been told my chances of selling are really slim. That a Court probably won't care that her personally can't afford the payments and is relying on family help or that he previously ditched me with the mortgage for such a long time. All they will see is that the children are living there (half the time albeit) and therefore to Order sale would be to make them homeless (they have a home with me for the other 50% of the time and he can afford to rent just chooses not to). Bugger.
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