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Urgent advice needed for court (tomorrow) please.(23 Posts)
I am in Court tomorrow and I am representing myself. I have just found out the other side has instructed a Barrister for the hearing and unfortunately I am having to represent myself.
In short. I have a Court Order forcing the sale of the property I jointly own with my ex partner. He lives there and is refusing to leave the property or sign the Estate Agents paper work to allow it to be sold. This Court Order was made over 6 months ago, so well out of time for him to appeal.
We have been back to Court twice since then, he has been told very clearly he is in breach of the order and must comply, last time I applied back to Court again he was given a pretty good dressing down by the Judge and given 14 days to get it on the market or risk being held in contempt of Court. That was 3 months ago and he still refuses to comply with any of the orders. He's also not paying he mortgage so it is close to repossession.
I have (finally) got yet another hearing for tomorrow. I need him out of the property and for the Judge to award me sole control of the sale - it is clear he will not comply with any Court Order and even once it is on the market he will make it near impossible to sell it if he is living there, blocking access and viewings etc. I have found out that an eviction order can be taken to bailiffs/enforcement officers to have him removed if necessary. I need this to be the last time I have to go back to Court about this so I need to get it right.
I am worried now I know he has a Barrister there as I am not clued up on the legislation and would feel much more confident if I knew what I was asking for was within the remit of the Court and what the actual wording is. Can anyone help me? Do I need an eviction order or is that only for tenants not owners? Or is it an occupation Order I am asking for stating he should not live there (although I don't want to live there). What would be fair given that this should have been on the market 6 months ago - 14 days or 28 days to vacate the property?
His solicitor seems to think that depsite the Order for immediate sale that was made 6 months ago that when it comes to the crunch A Judge will not force him to leave as he has nowhere else to live (he has recently lost his job, hence the mortgage not having been paid for a number of months now). I'm assuming this isn't true? We do have a young child who he has to stay alternate weekends but their home is with me.
Thank you, any other advice would also be greatly received.
No legal advice here but just on the basis of common sense - last time he was in court, he was ordered to do X, Y and Z. He didn't do any of it. Now he is using money for a barrister that should be spent on the mortgage - I think they'll wipe the floor with him.
You should stress again and again that the children have had to move out of their home and they live with you. He has not paid the mortgage. (Should you have done that?) He has not obeyed court orders.
How can he possibly win if he isn't even paying the mortgage?
Whilst we are jointly and severally liable for the mortgage as joint owners, the first court order stated that any mortgage arrears from that date onwards must be paid from his share of the profit on sale. I have to pay for my own home with our child so couldn't possibly afford the mortgage too - hence my desperation for it to be sold.
Sorry not a legal expert but good luck! I hope this bump will help a legal person to notice it...
Hopefully the judge will particularly despise him for dragging a barrister into this clearcut case.
There's rules (from the Law Society which regulate Solicitors) when they are in court and the other party doesn't have legal representation (called Litigants in Person) www.lawsociety.org.uk/support-services/advice/practice-notes/litigants-in-person/ so this may help.
I represented myself (maintenance, not property) and my ex had a solicitor. Just stick to the facts and try to keep emotions out of it. ImperialBlather's right, emphasise the fact that he was ordered to do X,Y,Z but has neglected to do so and has failed to pay the mortgage but has employed a barrister at considerable cost.
I am not legally qualified but wanted to reassure you that barristers are only as good as their brief. If they have a crap case then all the eloquence in the world will do them no favours.
I have gone up against them many times ( in a previous job) and as long as you know your case then you will be fine.
I would advise having the facts all before you e.g dates etc and be clear with the judge that you're seeking an order to remove your ex from the property while it is bring sold.
Judges aren't stupid. If there's someone in court with a barrister but that person is clearly in the wrong, the judge will know that they dragged a barrister in in the hope they can blag his way out of the situation. In fact the more he's spent on the barrister (and the judge will know who costs more) the more desperate he is to hide the fact he's a twat.
Google "order for possession under Tolata" which will give you some ideas about what the Court might order.
A few pointers (I won't ask your life story!)
Point out to the judge that he is using funds to (presumably) pay the barrister to defend your application for sale when it could have been used as a deposit on a rental property.
Prepare a chronology for the judge eg date of your first application to court, date of the hearing, any important deadlines he didn't meet. This will show his failure to act promptly.
Do some rough calculations to show the additional mortgage payments since the last hearing, this will demonstrate that his failure to act is putting HIM in a worse position too because the previous Order makes him responsible for those payments.
How did you get on today, OP? I was thinking about you.
Hello. Thank you all for your help.
I was so very nervous this morning. Guess what? He didn't attend the hearing! Judge was lovely and very understanding. She's added penal notices to the last two Orders and made a new Order stating I now have sole control of the sale of the property as the original Order stated we both have control of the sale. Now I can solely deal with the Estate agents, viewings, marketing, etc. He will still have to sign the transfer document once a buyer is found but Judge added to the order that if he refuses to sign within 48 hrs of me requesting him to then I can take the paperwork to Court and a Judge will sign on his behalf.
She's also written in the Order that he shall deliver up possession of the property to me in 14 days time! I'm hoping that this is enough to instruct enforcement agents/bailiffs to evict him as he's very unlikely to comply with the Order or leave without a struggle.
Another step along the way. I won't allow myself to celebrate yet as this has already dragged out nearly two years, but I can't wait until this property is sold, I regret the very day I bought it.
Wow - well done! Let us know when it's all sorted won't you
Oh, what a muppet!! Do you think he assumed the barrister would do everything?
Onwards and upwards, you're almost there Well done, you!!
Could be wrong but from watching can't pay we'll take it away on channel 5 once you have a county court order you should be able to move it up to high court who can evict within days rather than weeks and don't have to give notice
Which if he is still playing silly bastards should be quite satisfying
Well done. It's nice to see the law working as it should.
Ih ad a friend who had to get a court order to get a sale of a jointly owned property with his newish girl friend. It was very difficult but made easier by having a written agreement between them. She only bought him out when she found a new man to pay for her too.
Penal notices mean he could go to prison if he does not comply. If I were you even tough the court will send it to him I would post him a copy by special delivery and email it to him too and spell out in the covering letter exactly what now happens. That on 6th January he moves out and is not allowed back so he needs to get on with removing his stuff urgently. That you will be showing people around with estate agents urgently. It may be worth putting it in hands of several agents right from the start to push through a quick sale.
If he does not leave on 6th I am not sure about bailiffs. I suspect you might need some kind of eviction order which for tenants takes about 2 months to get them out but may be not. I am not a property lawyers or a family lawyer. Hopefully as there are all these penal notices and he could go to prison you might even be able to persuade the local police to accompany you on 6th Jan and go with several large friends too to get into the property, remove him, get the locks changed and perhaps even put a friend to stay in there for a few weeks until the sale happens to ensure he does not get back into it.
I've been waiting for them to sort out maintenance arrears since March this year. It does make you lose
the will to live hope so you've helped to restore mine. Thank you
Ladysybl- I don't mean he didn't show and his Barrister did, I mean nobody was there on his behalf at all.
Yes grumpyoldgit- some avid googling has resulted in me finding out that this county court order can be transferred to the high court by the sheriffs for a fee of £60 and they will then enforce the eviction and ensure he's out. I wonder if they are happy with spectators?
Might be worth pointing that out in a letter to him so that instead he spends the next 14 days organising removal vans and asking his mother if he can sleep on her floor or whatever.
Flowerfairy I would write to him but he previously reported me to Police for harassment when I wrote to him about the mortgage not being paid and the threatened repossession. It didn't come to anything but he has asked me not to contact him by letter again. He's refused to talk to me about the property, just lived there for free for ages causing me so so much stress as worry, ruining my credit rating and stopping me moving on. He refuses to pay maintenance too (I'm on the case with that one already!) and he knows I'm already in a difficult financial position.
The Judge said the Order would be written up and sent out to him in the next 3-5 working days. Well that's going to be next week now. What with Xmas and New Years and the way the weekends fall he's not going to get much notice of his moving day! Oh and he's been ordered to pay my costs!
Hit by the karma train...
In that case don't contact him.
(I received a judge's 3rd December recently. It was ordered 3 Dec. The court only wrote it up on 12th December and it arrived by snail mail post on 19th December!)
Fantastic work op, well done. Looking forward to hearing you have sold! , well it is Christmas morning here
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