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Joshua, Lawyer
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I want to apply for an order for sale to force my ex-partner

Customer Question

I want to apply for an order for sale to force my ex-partner to sell our property owned as tenants in common with no declaration of trust in place. I live in the house & pay the mortgage, but he is refusing to sell or transfer the property to me despite 2 years of negotiations & generous offers from me. The capital portion of my monthly mortgage payment is £1000, so his share in the house is increasing at a rate of £500/month without him having to pay anything, therefore he's in no hurry to sale and has obstucted the sale/tranfer.

I have been advised to apply for an order for sale on form N208. I have been told to word the claim as follows, but I don't know what that means in plain English & I want to be sure that I am asking for what I actually want. What I want is to have 1) an order for sale 2) we me having control of the sale.....how do we agree the division of equity, it's 50:50 by default, but neither of us want that, he says I need to pay him an extra £10k, and I want his share to be reduced by the amount of his missed mortgage payments £13k due to him having consistently obstructed a settlement for two years....he's the wording I have so far....

The Claimant claims:
1. An order that the Defendant joins with the Claimant in affecting a sale of the freehold property known asXXXXX Maidenhead, Berkshire, SL6 3JA ***want to request transfer how can this be worded?***
2. An order that the conduct of the sale be given to the Claimant ***want to request transfer how can this be worded?***
3. An order that the Defendant pay the costs of these proceedings, as notified in the letter from the Claimant to the Defendant of 17 June 2009.
4. Such further Order or other relief as may be just.

Part 8 of the civil procedure or rules 1998 applies to the claim. The legal basis for the claim is that:-

The property was purchased by the Claimant and the Defendant as Tenants In Common, with no Declaration of Trust, as a home for the two of them and the Claimant's three children.

The property is no longer a home for the two of them; The Claimant wishes to sever ties ties with the Defendant by buying the Defendant's share of the property and having the property transferred to her. The Claimant relies on the evidence in the witness statement filed with this claim. The claim is made under section 14 of the Trusts of Land and Appointment of Trustees Act 1996.

Any advise appreciated.
Submitted: 3 years ago.
Category: UK Law
Expert:  Joshua replied 3 years ago.
Welcome to JustAnswer! If you've any queries once you've read my answer do ask. When satisfied, kindly click the Green ACCEPT button.

Could you be more specific as to your question about this please?
Customer: replied 3 years ago.

Does the wording that I have put together for the N208 reflect what I want to achieve? Once I have the order for sale, which form to I fill out to have the court decide how the equity should be split.

Expert:  Joshua replied 3 years ago.
  1. Are you attempting to conduct this case yourself please?
  2. Do I understand correcty that you are paying al the mortgage but both you and your partner believe that he is entitled to benefit from your equity repayments?
Customer: replied 3 years ago.

Yes, I am attempting to conduct this case myself, I have already spent thousands with solicitors and I'm no further forward. I'm hoping that once I submit the form this will encourage him to settle out of court.

 

I am paying the mortgage. He thinks he is entitled to a straight 50:50 split thereby benefitting from the increased equity due to my capital mortgage payments PLUS he wants £10k on top of that. I don't think he should benefit from the increased equity since he has deliberately obstructed the sale in order to profit in this way, and he will continue to do so unless I force a sale, neither is he entitled to an extra £10k on top.

Expert:  Joshua replied 3 years ago.
He is operating under a mistake if he thinks he is benefiting from the capital payments you are making. He is not. Equitable accounting rules will preclude him from benefiting from the same. He would do well to read the decision in Goff & Jones that confirms this point.

You have done admirably though I am nervous that you are conducting this case yourself. TLATA cases are extremely complex and require experience and skill to conduct well. They are a world away from small claims matters.

Nevertheless in the hope that this assists you I would suggest the following wording for your claim form in terms of the remedies you are seeking:

1. A Declaration that the Property and the net proceeds of sale thereof belong to the Claimant and Defendant in shares ??:?? or such other shares as the Court may decide. 3. An Order that the Property be sold with the Claimant to have conduct of the sale and that the Defendant do join with and co-operate with the Claimant and take all steps and execute all documents necessary to effect the sale of the Property failing which a District Judge of this Court will have the ability to sign such documentation in place of the Defendant. 5. Such provision as the Court shall see fit in relation to occupational rent. 6. Such further or other relief as the Court may deem appropriate.
Joshua, Lawyer
Category: UK Law
Satisfied Customers: 24551
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other UK Law Specialists are ready to help you
Customer: replied 3 years ago.

Thanks for your advice so far.

 

Regards the occupational rent. My ex-partners' solicitor says that he is entitled to occupational rent which is equal to his share of the mortgage that he hasn't paid. However, I read that the court will often offset the occupational rent against the mortgage interest only, but not against the capital. Can this be included in the form? So instead of 'such provision as the court shall see fit in relation to occupation rent'....is it possible to request instead that any claim for occupational rent be offset against the mortgage interest which the Claimant has paid on behalf of the Defendant or something like that?

 

Expert:  Joshua replied 3 years ago.
Sorry for the delay in reverting. Yes it is not an exact science but case law suggests that interest element of the mortgage is typically used not the capital. You can do as you suggest but it would make little difference. The judge has discretion in the matter. It comes to the same thing.

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Joshua
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LL.B (Hons), Higher Prof. Dip. Law & Practice