Occupational Rent

[Patmitch]

Myself and my ex have a joint tenancy mortgage and for the last two years she has been living in the house but contributing nothing to the mortgage it the associated insurance, effectively living rent free.
My question is can I take sue her for her unpaid share if the mortgage through the small claims court?

[boxtops]

What did you agree when you split - did you have a separation agreement, describing who would pay what once you were living separately? How was she supposed to contribute to these costs - and why have you let it go on for two years, if she was supposed to be paying? Is the property still in your joint names?

I take it from what you say that you are paying 100% of the mortgage - do your mortgage lenders know? Depending on your salary, they might take a dim view of only one of you is now shouldering the loan, that's not what they agreed.

[boxtops]

I meant to ask too - what's occupational rent got to do with it, is she working in your business and the house comes with it?

[Patmitch]

The separation agreement was only signed in March and there is no mention of who contributes what.
Yes I have been paying 100% of the mortgage as I couldn't risk her not paying and therefore ruining my credit history.
She was given ample opportunity to contribute, I furnished her with all the account details she would have needed to make payments into either DD or SO. She refused point blank to make any payment.
Yes the property is still in both names (joint tenancy).
The occupational rent comes from the fact that she has been living there and not contributing whilst I have had to rent another property to live in.
My salary is not an issue and yes the current lender was made aware of the situation when I transferred the mortgage repayment to another account.

[boxtops]

I don't really understand why the separation order was only recent - when I split up from my ex, the details of the separation were sorted out before we formally split - and described exactly who was responsible for paying what. I don't understand why yours omitted anything about finance. How come you've let it go on for two years, with her not paying anything? I think you need to go back to your solicitor.

[boxtops]

Just twigged that your title means "rent for occupying the house" - not rent relating to an occupation (employment/trade).

[Patmitch]

Oh real help full.
It took two years to get her to agree and sign the agreement..

[boxtops]

Not trying to be difficult - just trying to understand the situation.

[boxtops]

My thought is that you could only sue her for defaulting if you could demonstrate that she had undertaken to pay 50% of the mortgage payments, when the mortgage was taken out - and that this arrangement still stands, even though you are now living apart. My concern is that this isn't detailed in your separation agreement.

[Peter Pedant]

// they might take a dim view of only one of you is now shouldering the loan, that's not what they agreed. //

IF there is a true joint tenancy - this is exactly what they agree - each person is responsible for the whole ( the phrase is jointly and severally )

However the question is can one sue the other for the Half ?

and it depends what you agreed - I had a joint mortgage with my nephew and there was no question of him ( student) paying if I didnt, which was financed by subletting - if there was a void I made up the difference.

Basically you need a financial settlement with your ex
and I dont think the small claims court is the way to do it.

[Patmitch]

There is a financial settlement in place, but I find it very hard to accept that she has basically lived rent free for the last two year and is about to walk away with £30k plus in her back pocket.
It is a joint mortgage and she has contributed little or nothing to it. It is my hard work that has gone into renovating the house. And yet she is the one to gain from all that.
I under stand that it is a joint tenancy and as such we are equally entitled to half the equity, that is not the issue.

To repeat my question can I sue her for her share of the mortgage over the last the years that she has been living in the house and paying nothing for the privilege?

[factor-fiction]

You say "There is a financial settlement in place"
Who drew up that settlement?

[black_cat51]

the time to bring up your concerns would have been before you put a financial settlement in place - the words financial settlement mean just that - that the finances are being settled

[boxtops]

As I said yesterday - I don't understand why the question of the mortgage payments wasn't dealt with from the outset, when you separated, albeit that it's taken a couple of years to get your ex to agree the terms. If there's a financial settlement already taken place, the mortgage payments should have been included with all the other household bills, IMO. I don't know what you can do about it now, if all the settlement for your split has been agreed. I know this isn't helpful to you, but I think it's too late.

If you were to take her to court now (if you can), is she still going to be living in the house, how would you get the payments from now onwards?

[black_cat51]

i presume hte house has been sold (if she has 30k in her back pocket)

[themas]

I'm confused. You say the separation agreement has no mention of who contributes what, but later you say there is a financial settlement in place. These statements seem somewhat contradictory, or do you mean that there is a financial settlement setting out the arrangements going forward (i.e. from March this year) but nothing about what should have been paid by each of you in the 2 years up to then?

If that is the case, why was nothing about it included in the separation agreement? Was it a concession by you to get her to sign the agreement or was it an oversight?

My view is that if the agreement can be seen in any way as being a full and final statement of the terms of your separation that she would use it as a defence in any Court claim you brought and would very likely succeed. However, if you had legal help in preparing the agreement you should consult the legal rep. who dealt with it.

[Patmitch]

I'll make this as clear as I can
I moved out of the house in May 2012 and to ensure the mortgage payments I left in place a standing order of £200 per week. This continued for aproximately 12 months, and as other household bills if hers also went out of the sane account, and she hadn't paid anything in to the account I moved the mortgage DD to another account and gave her the account details so she could pay into it if she felt inclined to do so, she hasn't.l
In November of last year after some dialogue she indicated she was ready to agree a settlement. The agreement was drafted and sent to her for approval. She then proceded to to sit on the agreement finally agreeing to sign in March if this year.
In the agreement it sets out the amount she is to receive as settlement for her share "less any money owed" to me.
My question therefore is, as the mortgage is a joint one and as she hasn't contributed to the mortgage since May of 2912 can I claim her share of the mortgage back, is nesessary suing her for it?

[boxtops]

That looks more clear now, patmitch. As the settlement agreement says "less any monies owed to" you, I suggest that you need to raise an invoice to her for all monies not paid in my your ex since March 2012. That document then gives you a starting base - if she doesn't pay, despite a couple of reminders, by a given date, then will be the time to start issuing legal demands for the money. You might want to pass this by your own solicitor though, to ensure that the wording on your invoice leaves no loopholes. IMO.

[themas]

"less any money owed" is vague. It leaves it open to a future argument. If your legal adviser drafted this then quite frankly I don't think much of it! The purpose of such an agreement should be to nail down everything so there can't be any argument afterwards. She could perfectly well adopt the attitude that the amount she is to receive for her share was calculated after allowing for the fact that she hadn't contributed to the mortgage.

I really do think you should go back to the legal adviser on this.