Life after domestic abuse on a joint mortgage...

zmd1201

Hello,

I haven't posted here much, although I have been a silent lurker and reader of the forums for years.

I am hoping that someone has some advice to offer me, as I feel like I've searched the internet on this one, and not found much to support my specific situation. I'm sorry about the essay that is to follow.

I jointly own a property with my now, ex-partner (we did not marry and have no children). We bought it 2 years ago, for a value of £325k, with a 10% deposit, £25k of which is protected in a deed of trust in my name. We were together for five years, and during that time together, there were many instances of him being violent towards me, to the extent I feared my life. In 2017, he was charged with the violence towards me and given a year on probation. Unfortunately, like many others, I decided to stay with him following this, because I found the process of extracting myself too difficult to deal with. Finally, in June 2020, I left for good. I spent 6 months living with a family friend, many hours away from where I lived. In January, I decided to rent some accommodation as I wanted to start getting some independence back. Since I left, he has lived in the property, without a job, whilst I have paid all of the bills and mortgage (which came out my account) at a total cost of £1,500 a month. I have tried to buy the property out from him, as he is not in a financial position to buy me out.

I tried to end everything as amicably as possible. He has not worked since early 2020 and I supported the two of us. On a separate note, I do feel that I was also a victim of economic abuse, as he refused to apply for jobs, and would insist on me spending all of our money on expensive groceries and the most premium version of everything. Despite the fact that he technically owes me lots of money from me paying the mortgage and all of these bills and expenses, I used our mortgagers valuation of £335k to offer him a settlement value of £11,500, which has never taken into account the money he owed me. He refused to accept this, quoting a figure of £25,000 for "Miscellaneous expenses".
He also then insisted on obtaining a joint expert valuation. I don't believe he has had the best legal advice, as this is a surveyors report, and came back with a much lower valuation of £300k. He has refused to accept this as well, as it wouldn't leave him entitled to anything.

However, whilst this was all going on, in August 2020, I received a call from the police whilst I was on holiday in Yorkshire saying that they had reports that he had made death threats about me. He had told people he had put a tracker on my car (which he hadn't) and I ended up having to have the police search my car. He was put on police bail and told not to contact me as one of the conditions, which he repeatedly broke. Unfortunately, the police gave him bail conditions which lasted until October 2020, stipulating he had to reside in our address, and he refused to sign an amendment to change these conditions. Resulting from this harassment in August 2020 he is due to appear in court in April this year, where hopefully a restraining order will be enforced.

As a result of this, I decided to apply for a non-molestation order and occupation order. I was awarded the NMO in November, with power of arrest.  However, since then  I recorded over 25 instances of him breaching the non-molestation order, through emailing me and phone calling me on No Caller ID (I kept my number in an old phone so I can be included in the whatsapp group with the flat we own).  I contacted the court, with these instances and they refused to help me with it (despite the advice on womens charity abuse websites), but I provided the police with a PDF document showing why I believed these calls to be him, with recordings of the voicemails he had left me. He was arrested for this, and there is an ongoing investigation with the CPS. The police specifically did not put bail conditions on him to reside in the property this time, to help me with my occupation order.

 I have had two hearings from the occupation order, and I am due to have the final hearing in June 2020, with my evidence being sent off in the next couple of days. However, the last hearing did not go well for me. The judge deemed that my situation was "unfortunate" but because my ex is saying he will be homeless because he doesn't have a job, the judge implied that I was not at risk enough to be granted it. As I have been through a series of hearings and the judge "allowed him" to stay in the property until an agreement is made, my solicitor initially advised me not to start cutting off the bills, because essentially my ex had "agreed" in court it would be deducted from a final settlement.

The problem is, that our flat, on a market value is worth about £315k, (£10k less than we paid) and he is refusing to accept any figure below £350k. He has continually employed delaying tactics, whilst I'm currently spending £2,000 a month on living expenses. I feel that I am in a fairly unusual situation because whilst he was the abuser, I have a good job and a steady income and therefore I have been at the financial advantage. However, the result of my outgoings on legal fees for settlement agreements and all of the advice, is starting to take it's toll. In May 2021 our fixed interest rate is up, and if he is not off the mortgage by then, I will be paying several hundred pounds a month more, which will really hurt. I'm struggling to find a resolution to get him to leave the flat. Initially I didn't think I could return to the flat because of my safety (I have had to live in complete secrecy so he doesn't find me) but the judge won't give me the order unless I return there. So I am now going to plan to return there, as I feel that this is the only way to get him to leave, unless my family pay him an obscene amount of money, that he is not owed.

The judge mentioned that if we took it to TOTLA, it could be deemed that we sold the house at auction, but it would be my deposit, protected in the deed of trust that was lost if it was sold at a low value. I don't want to put the flat on the market now, because I know he won't agree to selling it for any of the offers we will get.
I am just completely stuck. I thought leaving five years of domestic abuse was hard, but actually, the impact of the things that have followed has been worse. I know I am lucky that I have not needed to go to a Women's Refuge, but my situation means that I actually cannot find anyone to help me extract myself from this situation.  He's living there for free, and because he refuses to sign anything, it seems like unless I choose to stop paying the mortgage and ruin my credit rating, he gets to live there. I've been advised that taking him to court for the TOTLA proceedings would cost me thousands more, and take several more months.

I am so sorry for the long essay, but I would really appreciate any advice that anyone might have. 

Thanks

sassyblue

Hi OP this sounds absolutely appalling, I cannot believe your solicitors haven’t managed to force a sale of the property when your ex has broken so many Orders.

unfortunately, I do think going to Court under TOLATA is your only hope. 

In the meantime, can you change the mortgage to interest only to reduce the monthly repayments?

sallysaver

I cannot begin to imagine what you have been through and indeed are still going through. How you have continued to fund his lifestyle is simply beyond me.  I would have given in long before now.  I am sorry I have no advice to give , but you must be exhausted as you appear to hit brick wall after brick wall.  All I can say, I hope that things dramatically improve for you as we go through 2021.  Sincerely, I wish you well.

tacpot12

I hope your hearing for the occupation order goes better. If your ex is receiving any means-tested benefits, then I think you should make the case to the Judge that your ex will not be homeless if you are awarded the occupation order as the government will pay most of his rent via either Housing Benefit or the Housing Element of Universal Credit. Only if he is cannot claim these benefits would it be unreasonable to evict him. He has had plenty of time to find somewhere he can afford to move to, although the national lockdown has made it difficult. I would suggest that your solicitor makes it clear that you expect him to take the opportunity of the lockdown ending to find somewhere to live and to claim Housing Benefit or the Housing Element of UC. If your ex tries to claim that he will not be eligible for means-tested benefits if he receives a fair value for his share in the property, this is not correct. The DWP have to ignore the money from the sale of a former home if you intend to buy another property with it. If your ex does not find somewhere and move out, you need to try to persuade the court that this is an  example of his coercive behaviour, and only their intercession will protect you.  

You should apply pressure to the court as why he should be able to claim the market value is £350K. What evidence does he have of this, and how does his evidence compare to the evidence you have that it is worth £315K. The surveyors report valuing it at less than £300K is valuable to you in that is shows you are being generous in being willing to agree a value of £315K, but if you had to agree on a value of £320K or even £325K, I think this would be worth it to resolve the matter, but you have said that he will not accept anything less than £350K. Your position to the court is that this is completely unreasonable, and should not be a reason why he should be allowed to stay in the property as he can argue about the price from his rented home in the coming months. 

pinkshoes

Have you tried having your solicitor write and put a time limit on the offer of £11,500?

e.g. as per the valuation that he had done, the property is now worth only £X, which means his share in the property is £0. However, as a gesture of good will, you are offering a settlement figure of £11,500 which must be accepted, him move out of the property, and his name removed from the deeds by 31st May 2021. At Midnight on 1st June 2021, this offer will be null and void, and you will force the sale of the house through the court at its current value, and he will also become liable for half of all the costs. 

I know someone who did something similar, although hers was just to get her name off the deeds of a property as she wanted to move on with her life and buy something else. 

TBagpuss

Yu will need to apply via TOLATA. Make sure that the solicitor you use is someone who deals regularly with this kind of litigation - not all family solicitors do as it is dealt with under the Civil Procedure Rules, not the Family Procedure. 

There is no reason why it would result in an auction - while it can be a long process the court in those proceedings does have powers to deal with the situation if he won't cooperate - this can include evicting him (either to enable a sale to complete, or to enable you to effectively market the property), making orders to allow transfer documentation to be signed by a Judge (or in some cases, by the conveyancing solicitors) , ordering him to pay yours costs, and I think also adjusting the shares of the property you each have to ensure that losses he causes come out of his share. 

The difference to the injunction process is that the injunction is intended to be a short term protection, not a long term solution , the court can't permanently change your rights to the house. For an occupation order they have to look at the balance of harm - i.e. whether the harm to you if the order is not made is greater than the hard to him if it is. If the reality is that you are securely housed elsewhere and need the occupation order to make it easier to sell, and the  harm to him is that he will be homeless then the court may well deicide that a non-molestation order gives you appropriate protection and that an occupation order is not appropriate, particularly if the aim is to sell the house.

You might have more luck if you are saying that you cannot afford to pay both sets of housing costs and that the harm you will suffer will include either being unable to afford to rent elsewhere, or having to allow the mortgage to go into arrears and thus suffer long term harm though the impact on your credit record, but even then the Judge still has to try to balance to respective harm, and not to try to decide a ToLATA claim through the back door. 

I would speak urgently to a solicitor about starting the ToLATA process, and perhaps discuss whether you could be able to raise a lump sum now, before the house is sold, to effectively pay him now on account of his interest in the house, a lump sum which would allow him to pay a deposit and 6 months rent up front , to move out,  It's risky, as of course if he ended up dragging things  our you could end up with him owing you more in costs than he was entitled to from the house, but  making the offer might be tactically worth while. But get proper, expert advice from a litigation lawyer who deals with TOLATA cases

zmd1201

Hi,
Thanks so much for all of your responses. It looks like going down the TOLATA route is my best bet.

pinkshoes said:

Have you tried having your solicitor write and put a time limit on the offer of £11,500?

Yes, I've tried doing this and he just ignored it (well, the first time he just said no, he wanted £25k, quoting "miscellaneous expenses"). The problem I had is that I was too reluctant to follow through and just default the mortgage so I felt he had me over a barrel. I issued another offer to him a week or so ago, and this has a few days before it expires.

TBagpuss said:

There is no reason why it would result in an auction - while it can be a long process the court in those proceedings does have powers to deal with the situation if he won't cooperate - this can include evicting him (either to enable a sale to complete, or to enable you to effectively market the property), making orders to allow transfer documentation to be signed by a Judge (or in some cases, by the conveyancing solicitors) , ordering him to pay yours costs, and I think also adjusting the shares of the property you each have to ensure that losses he causes come out of his share. 

You might have more luck if you are saying that you cannot afford to pay both sets of housing costs and that the harm you will suffer will include either being unable to afford to rent elsewhere, or having to allow the mortgage to go into arrears and thus suffer long term harm though the impact on your credit record, but even then the Judge still has to try to balance to respective harm, and not to try to decide a ToLATA claim through the back door. 

Thank you for confirming the point about the auction. This was something the judge said at the previous hearing and I did find that he wasn't very clear in some of the points he said to me - for example I asked him why the next hearing was going to be 3 hours long, and he didn't explain to me the process that it was a final hearing and this is where the decision was made. He just said "well that's the point, its much longer". All I want is it to be moved into my name so I can make an informed decision about the best thing to do next, without the pressure of selling it at a loss. 

I'm going down the route of saying in my statement I can't afford to pay everything, which is true, but to be honest at this stage, I'm just going through with the Occupation Hearing (Final hearing now in June) because I don't want to drop off the system whilst everything else is still in a process. If I can't afford to keep paying 2 sets of bills, the best option would be for me to return to the property if it was safe for me to do so (the safety aspect is unfortunately questionable, it's hard to ever feel safe now). Hopefully by June, I will have a resolution and not need to do it, but who knows!
I'm definitely going to start making some enquiries into the TOLATA if he doesn't come back on the current offer that is previously with him in the next couple of weeks.

tacpot12 said:

I hope your hearing for the occupation order goes better. If your ex is receiving any means-tested benefits, then I think you should make the case to the Judge that your ex will not be homeless if you are awarded the occupation order as the government will pay most of his rent via either Housing Benefit or the Housing Element of Universal Credit. Only if he is cannot claim these benefits would it be unreasonable to evict him. He has had plenty of time to find somewhere he can afford to move to, although the national lockdown has made it difficult. I would suggest that your solicitor makes it clear that you expect him to take the opportunity of the lockdown ending to find somewhere to live and to claim Housing Benefit or the Housing Element of UC. If your ex tries to claim that he will not be eligible for means-tested benefits if he receives a fair value for his share in the property, this is not correct. The DWP have to ignore the money from the sale of a former home if you intend to buy another property with it. If your ex does not find somewhere and move out, you need to try to persuade the court that this is an  example of his coercive behaviour, and only their intercession will protect you.  

You should apply pressure to the court as why he should be able to claim the market value is £350K. What evidence does he have of this, and how does his evidence compare to the evidence you have that it is worth £315K. The surveyors report valuing it at less than £300K is valuable to you in that is shows you are being generous in being willing to agree a value of £315K, but if you had to agree on a value of £320K or even £325K, I think this would be worth it to resolve the matter, but you have said that he will not accept anything less than £350K. Your position to the court is that this is completely unreasonable, and should not be a reason why he should be allowed to stay in the property as he can argue about the price from his rented home in the coming months. 

Thank you for this, I didn't know the point re the means tested benefits point. I've also done some research today and it looks like he can get some sort of benefit that would help him make an advance payment on rent too. 

sassyblue said:

Hi OP this sounds absolutely appalling, I cannot believe your solicitors haven’t managed to force a sale of the property when your ex has broken so many Orders.

unfortunately, I do think going to Court under TOLATA is your only hope. 

In the meantime, can you change the mortgage to interest only to reduce the monthly repayments?

I spoke to my mortgage company today and it turns out there is an option for me to switch over my mortgage on to a tracker, with no early repayment fee. It's slightly more expensive, but my ex partner does not have to agree to the new rate or terms so at least whilst this drags on I will be on a set rate. It then means I can sell the property on my own terms, when I am ready. I don't want to be forced to sell it for less money because I am in a desperate rush to sell.

Thanks so much for all of your advice, it has all been really helpful! 

I'll be finishing my statement today as I have to submit it to the court and then I'll be cracking on with seeing what I can do with the TOLATA. The final point I need to look into is that my home insurance has expired (contents), but I don't quite know how to get insurance when I am the policy holder, but he lives there, I am not renting it, but it is not unoccupied? All of the contents there are mine and I am slightly concerned his final present to me could be a trashed house! I  feel like I'm probably fairly un-insurable.....

Thanks all!

Racky_Roo

could you also stop paying electricity/gas/water/broadband/council tax? You're not living there so you could give final readings for the energy and water and tell them you've moved out and your ex needs to take over. He should at least be able to afford that out of his universal credit payments and that would also help you.

HampshireH

Racky_Roo said:

could you also stop paying electricity/gas/water/broadband/council tax? You're not living there so you could give final readings for the energy and water and tell them you've moved out and your ex needs to take over. He should at least be able to afford that out of his universal credit payments and that would also help you.

This at the bare minimum. Also point out how long he has had to search for a rental /join housing register etc instead he has sat in the land of lazymans luxury (don't add that bit)

warwick2001

Racky_Roo said:

could you also stop paying electricity/gas/water/broadband/council tax? You're not living there so you could give final readings for the energy and water and tell them you've moved out and your ex needs to take over. He should at least be able to afford that out of his universal credit payments and that would also help you.

100% this ^^^

As far as I am aware, you have no legal responsibility to pay for utilities in a house you don't live in. And being sat in a cold, dark house with no wifi/tv/hot water might give his tiny brain a bit of a kick!!

Good luck  

zmd1201

Hi all,
Sorry for such a delayed response. Bills were cancelled and I was starting with TOLATA Proceedings... however, yesterday I had my final occupation order hearing and won! He has 4 weeks to leave and it comes with power of arrest. I'm sure once he's left he will be much more likely to sign everything across to me as he'll need the money... 
I've finished the year with:
- Non Molestation Order with a zoned area he can't go
- Occupation Order
- Restraining Order (following criminal investigation order).

Finally feeling like there is some justice in the world...
Thanks for all of your help, I used a lot of the points you suggested :-)