Help. Homeless and denied access to my property

TX1

My situation is quite unusual. I purchased a property with a former partner 10 years ago. We separated 2 years later and the property was rented out. We have both since married our current partners and no longer communicate. The property I rent has been put on the market and I am unable to find suitable accommodation in the same area. I am now homeless. I wish to return to the property I co-own so as my daughter can remain in the area close to her family, friends and school. However, the property which I am a co-owner is currently occupied by the brother of the other owner and no tenancy is in place. He covers the mortgage and has two children that stay with him every second weekend. However, he has a house in the same town that is rented out as he cannot afford the mortgage payments on his own which is why he moved to my home. I need the premises vacated as soon as possible but I am unsure how to proceed and any advice would be greatly appreciated by me and my family as there is no other alternative. I issued notice via a solicitor and he ignored it. My solicitor said as there was no objection I was free to move in. However, when I tried to enter the locks had be changed a a spyhole had been installed on the door. I had TRS removed but the other person had not and it is still being applied on the basis that they have told revenue they are living there. The tenancy was never registered so the PRTB will not get involved. The Garda have confirmed that they won't get involved either and that I cannot enter. I am so stressed and homeless for almost 3 weeks now. Has anyone experience on having the locks changed. I have evidence that I informed the other co owner to remove their TRS and the reply saying they would not. The rent is 300 more per month than the mortgage repayments. The co owner is keeping these payments and not declaring income tax, receiving TRS illegally and failing to register the tenancy. They have now requested I remove my name or they will force a sale. It is in negative equity but the property is making a large monthly profit. My main concern now is getting accommodation for my daughter and myself as we are sleeping in a friends living room. Any advice appreciated.

Mrs OBumble

Have you been to your local TD, or anyone else who may be able to influence your ex?

It's going to be some sort of local relationship which sorts this out - otherwise lawyers will simply make a fortune out of the whole mess, and you'll all be worse off. You need to find someone with leverage to influence your ex.

Stheno

Who is paying the mortgage on your house?

TX1

Stheno wrote: »

Who is paying the mortgage on your house?

The rental income is covering it and then some. I have actually being trying to get back in since finding out it was rented. We had an agreement for occupation rent to cancel out my share of mortgage as they wanted me to move out. I have been unable to get back in since and locks have been changed. My solicitor is adamant I can move in and pack up the brothers belongings. I am so terrified how long I will be homeless. I can easily afford the repayments. The issue is there is nothing on the market to rent.

TX1

They have threatened to force a sale if I don't take my name off. Can a sale be forced on a property in negative equity if there are no arrears and is easily affordable. They have basically said if they can't have it for themselves they will force the sale. Is that a legimate enough reason. Also TRS of around 8000 has be incorrectly applied through their deceit and not income tax returns have been filed by them for the 6 years it has been rented out.

TX1

They have threatened to force a sale if I don't take my name off. Can a sale be forced on a property in negative equity if there are no arrears and is easily affordable. They have basically said if they can't have it for themselves they will force the sale. Is that a legimate enough reason. Also TRS of around 8000 has be incorrectly applied through their deceit and not income tax returns have been filed by them for the 6 years it has been rented out.

Denny_Crane

Wow there is a myriad of issues there - you need to separate the non-compliance with tax, TRS and all that and focus on the possession of the property. Your solicitor is going to be the only one who can advise you here. You will be looking at at least 18 months and the guts of (at a guess) €20K in costs. The only advice I can give you is don't expect a quick solution.

If you have it in writing from your solicitor that you can move back in, get a locksmith out and call the guards to deal with any ancillary argy-bargy (if needed).

TX1

I have gone to the Garda but they want nothing to do with it. My solicitor has advised me to get a locksmith and enter the premises without a court order as we issued notice in writing and they never replied which can be argued infers that they agree .... but the fact they changed the locks and installed a spyhole obviously means they don't. My worry is I cannot afford 20000 and 18 months.

Denny_Crane

TX1 wrote: »

I have gone to the Garda but they want nothing to do with it. My solicitor has advised me to get a locksmith and enter the premises without a court order as we issued notice in writing and they never replied which can be argued infers that they agree .... but the fact they changed the locks and installed a spyhole obviously means they don't. My worry is I cannot afford 20000 and 18 months.

Guards are not like the US police, they are reactive not proactive.

Go to the property with a locksmith and gain entry. If argy-bargy ensues then you call the guards to come and deal with any issues arising.

This is assuming your solicitor has given you the info you're saying he has. I'm simply giving you the bleedin' obvious practicalities rather than any legal advice. On that note, you CAN be done for criminal damage to YOUR OWN property so don't be tempted to break in. Although it has to be to defraud or must endanger life to be fair.

TX1

Denny_Crane wrote: »

Guards are not like the US police, they are reactive not proactive.

Go to the property with a locksmith and gain entry. If argy-bargy ensues then you call the guards to come and deal with any issues arising.

This is assuming your solicitor has given you the info you're saying he has. I'm simply giving you the bleedin' obvious practicalities rather than any legal advice. On that note, you CAN be done for criminal damage to YOUR OWN property so don't be tempted to break in. Although it has to be to defraud or must endanger life to be fair.

But is going there with a locksmith considered breaking in? My solicitor says there is no tenancy in place legally. If there was it was without my consent and has not been declared. I am desperate and contemplating following my legal advice but everywhere else I have read it as being an illegal eviction and I would be liable for a fine if up to 20,000.

tracey turnblad

Have you only found out this is happening? What did you think was happening while you weren't paying the mortgage for all those years?

lifeandtimes

One fact I know is that you can't just remove your name from the mortgage papers.

To do this the house I'll need to be remortgaged and your ex will have to go through the whole rigmarole of getting another one.

Also forcing a sale when children are in valved can't happen,your ex will need to contact the bank and obviously the question of you will come up as you need to sign off etc

Best advice is follow your solicitor.

Get a locksmith,go the house and gain entry and put out the occupants stuff,he can't call the police and even if he does there is no tenancy agreement and even if there was you have issued notice legally and there was no response

So you should be good to go

Denny_Crane

This is getting dangerously close to legal advice.

Breaking in as in with a sledge hammer has the potential for a guard to arrest you for criminal damage. It's unlikely to go anywhere but it gets you out of the equation and him back to doing proper guard stuff. A locksmith isn't damaging anything, not in any sense that's likely to get you removed from the property. If you go down this route you're going to have to stand your ground with either the occupier or possibly the occupier and the guards. You will need to consult your solicitor if the guards are telling you to move on and take their advice.

If you're worried about the eviction side of things don't evict him, make a copy of the key and tell him you're now housemates.

Denny_Crane

I advise against putting the occupants stuff out. Box it up and keep it safe and above all make it available for collection at any time.

Cartouche

Surely, as an owner of the property, you can serve the current tenant with a termination notice. Even if no tenancy is in place, a notice to quit the property
I have no idea how one removes a tenant who refuses to leave though ?

Denny_Crane

Cartouche wrote: »

Surely, as an owner of the property, you can serve the current tenant with a termination notice. Even if no tenancy is in place, a notice to quit the property
I have no idea how one removes a tenant who refuses to leave though ?

I'd be concerned this would add legitimacy to the occupants position. The OP (apparently) had legal advice telling him what to do, he seems to lack the vision on the practical front, which is fair enough.

TX1

I'm not looking for legal advice. It's just I've not seen anyone in similar circumstances. The Garda and PRTB told me to register the tenancy and then evict. I told them why would I register a tenancy that I do not consent with. I think I will change the locks and let him stay with me and make it uncomfortable. I have no choice.

TX1

lifeandtimes wrote: »

One fact I know is that you can't just remove your name from the mortgage papers.

To do this the house I'll need to be remortgaged and your ex will have to go through the whole rigmarole of getting another one.

Also forcing a sale when children are in valved can't happen,your ex will need to contact the bank and obviously the question of you will come up as you need to sign off etc

Best advice is follow your solicitor.

Get a locksmith,go the house and gain entry and put out the occupants stuff,he can't call the police and even if he does there is no tenancy agreement and even if there was you have issued notice legally and there was no response

So you should be good to go

We both have children with new partners.

TX1

tracey turnblad wrote: »

Have you only found out this is happening? What did you think was happening while you weren't paying the mortgage for all those years?

No. I found out it was rented out in 2012 and have requested for 4 years to move back in. I then had to take a timeout to concentrate on my degree but now with the property I rent being sold I am homeless.

Cartouche

I know this is slightly off point, but if you have a valid tenancy and follow all procedures for termination, can a tenant be ever physically removed from a property?, and who performs the eviction ?........ if it came to that

TX1

Denny_Crane wrote: »

I'd be concerned this would add legitimacy to the occupants position. The OP (apparently) had legal advice telling him what to do, he seems to lack the vision on the practical front, which is fair enough.

I think the issue is my solicitor said I am free to enter and occupy the property. I was nervous so contacted the Garda for assistance and they advised me my solicitor was incorrect. I contacted the PRTB which the Garda said was the correct route. The PRTB told me to register the tenancy and then evict but apparently it could take months and surely then I am legitimatising an illegal occupation of my premises.

TX1

Cartouche wrote: »

I know this is slightly off point, but if you have a valid tenancy and follow all procedures for termination, can a tenant be ever physically removed from a property?, and who performs the eviction ?........ if it came to that

This is in a nutshell what I have been confused about. If you follow the correct procedures and evict a tenant but they refuse then what? I have found numerous version all of which end up in court .... but what if the landlord is homeless as a result?

Denny_Crane

TX1 wrote: »

This is in a nutshell what I have been confused about. If you follow the correct procedures and evict a tenant but they refuse then what? I have found numerous version all of which end up in court .... but what if the landlord is homeless as a result?

Tough. You never really own real property (houses), you have a bundle of rights over the property and in a situation where one party is going to be homeless there's no reason the owner should take precedence. Sorry if that sounds a bit harsh and I know how easy it is to get in to varying degrees of the various messes you're in but people need to understand renting out should not be done lightly.

Try and put out any other considerations on the moral rights/wrongs, tax etc. and follow the advice of your solicitor to the letter. Don't assume anything. No one else is going to advise you as they don't have all the facts. Do not be reassured that some randomers on the internet seem to have the answers, we don't.

Senna

TX1 wrote: »

We had an agreement for occupation rent to cancel out my share of mortgage as they wanted me to move out

Is this in writing?
As the Tennant is family of one of the owners, I would not just go in and change the locks, you will ultimately lose in this situation, especially as kids do stay in the house at times.
Your best hope is to negotiate with your ex, get full market rent for the house and any remaining money is split with you.

It's a horrible situation but you agreed that the rent would cover your half of the mortgage, that will sound like you didn't want anything to do with the house. If rates had of sky rocketed and rents fallen, would you be happy now if they wanted you to pay money towards the mortgage if the rent did not cover it?

TX1

Senna wrote: »

Is this in writing?
As the Tennant is family of one of the owners, I would not just go in and change the locks, you will ultimately lose in this situation, especially as kids do stay in the house at times.
Your best hope is to negotiate with your ex, get full market rent for the house and any remaining money is split with you.

It's a horrible situation but you agreed that the rent would cover your half of the mortgage, that will sound like you didn't want anything to do with the house. If rates had of sky rocketed and rents fallen, would you be happy now if they wanted you to pay money towards the mortgage if the rent did not cover it?

I did pay 150 a month for over a year when the amount she wanted to pay didn't cover the mortgage. Occupiers rent is standard when a couple cannot live together. It is constructive exclusion from the property. One had to stay and one go or both had to go and for it to be rented out. I was actually still paying money when she she rented out to another tenant at much higher rate than the mortgage and never told me it was rented out so actually was pocketing the rental profit and my money monthly.

Senna

That's fair enough, I'm thinking of how all of this looks if it went to court, as I can't really see this being resolved outside of a court room.

Cartouche

What good is a court order if you cant physically evict someone from a property ?

billy few mates

TX1 wrote: »

I think the issue is my solicitor said I am free to enter and occupy the property. I was nervous so contacted the Garda for assistance and they advised me my solicitor was incorrect. I contacted the PRTB which the Garda said was the correct route. The PRTB told me to register the tenancy and then evict but apparently it could take months and surely then I am legitimatising an illegal occupation of my premises.

What did your solicitor say when you informed him that the Gardai had dismissed his legal advice as being incorrect....?

TX1

billy few mates wrote: »

What did your solicitor say when you informed him that the Gardai had dismissed his legal advice as being incorrect....?

She informed me that I was entitled to move in and that the Garda could not get involved as it was a civil matter. I am going to bite the bullet and enter the premises tomorrow and wait for the force of sale proceedings to begin ... but at least I won't be homeless. I am assuming the other owner was told I cannot be prevented from entering which is why the spyhole went up on the door to my premises after I informed them I would be availing of my property rights ...

Stheno

TX1 wrote: »

She informed me that I was entitled to move in and that the Garda could not get involved as it was a civil matter. I am going to bite the bullet and enter the premises tomorrow and wait for the force of sale proceedings to begin ... but at least I won't be homeless. I am assuming the other owner was told I cannot be prevented from entering which is why the spyhole went up on the door to my premises after I informed them I would be availing of my property rights ...

I would think there is an issue here with the fact that the tenant has been given permission to live there by the other owner tbh

You are forgetting one relevant bit...you allowed the tenant cover your mortgage so you derived a benefit and it could be argued you have consented to the arrangement, and you are now objecting because your situation has changed. Furthermore, was issuing a notice not a tacit admission that the occupant is a tenant?

I think there are risks with simply moving back in.

TX1

[Deleted User] wrote: »

You are forgetting one relevant bit...you allowed the tenant cover your mortgage so you derived a benefit and it could be argued you have consented to the arrangement, and you are now objecting because your situation has changed. Furthermore, was issuing a notice not a tacit admission that the occupant is a tenant?

I think there are risks with simply moving back in.

Which is why I am nervous about moving back in ... but as I said I am homeless. The "tenant" actually owns a house two minutes away. I believe this has been done deliberately to prevent me from enjoying the property. Allowing someone to pay my mortgage and being forced to rent somewhere for the past six years are not the same thing. I never consented to it being rented out. The contract with the bank is for the property to be occupied by an owner. The tracker rate is based on that presumption too. The TRS is being applied for her on that presumption and her failure to submit income tax returns is as a result of her informing revenue that it is her primary residence. No NPR has ever been paid. I have paid the Property Tax since it's inception and lodged several thousand to her account when I believed she was living there when in fact she was not. They have been very deceitful. Now I have been told that I have to remove my name or a sale will be forced and the negative equity will be on my head. So basically they want it for themselves and if they cannot have it for themselves they are willing to take on 30,000 of negative equity in order to stop me enjoying my rights.

Can a sale be forced on those grounds?

TX1

TX1 wrote: »

Which is why I am nervous about moving back in ... but as I said I am homeless. The "tenant" actually owns a house two minutes away. I believe this has been done deliberately to prevent me from enjoying the property. Allowing someone to pay my mortgage and being forced to rent somewhere for the past six years are not the same thing. I never consented to it being rented out. The contract with the bank is for the property to be occupied by an owner. The tracker rate is based on that presumption too. The TRS is being applied for her on that presumption and her failure to submit income tax returns is as a result of her informing revenue that it is her primary residence. No NPR has ever been paid. I have paid the Property Tax since it's inception and lodged several thousand to her account when I believed she was living there when in fact she was not. They have been very deceitful. Now I have been told that I have to remove my name or a sale will be forced and the negative equity will be on my head. So basically they want it for themselves and if they cannot have it for themselves they are willing to take on 30,000 of negative equity in order to stop me enjoying my rights.

Can a sale be forced on those grounds?

Oh once one co-owner wants to sell and the bank consents, inevitably the Courts will support it, have never heard of a case where a person was forced to keep property. You may have to go to Court to determine the extent of the occupants rights (including termination) which would be inferred from conduct to date and to force co-owner to sell. But, although it does seem designed to frustrate you and keep the bank from moving, the occupancy may still be a tenancy - matters such as you not being able to pay rent and support the mortgage or the occupant having another house don't trump the classic pointers to a tenancy, exclusive possession, payments in the nature of rent etc.

Chuchote

Wait, you want to move back in when there are already people living in the house?

TX1

Chuchote wrote: »

Wait, you want to move back in when there are already people living in the house?

The issue is they moved in without my knowledge. I wrote via a solicitor confirming that I require the property for myself and they ignored the letter, changed the locks and installed and spyhole on the door. I have been left homeless as a result.

TX1

[Deleted User] wrote: »

Oh once one co-owner wants to sell and the bank consents, inevitably the Courts will support it, have never heard of a case where a person was forced to keep property. You may have to go to Court to determine the extent of the occupants rights (including termination) which would be inferred from conduct to date and to force co-owner to sell. But, although it does seem designed to frustrate you and keep the bank from moving, the occupancy may still be a tenancy - matters such as you not being able to pay rent and support the mortgage or the occupant having another house don't trump the classic pointers to a tenancy, exclusive possession, payments in the nature of rent etc.

I understand this but I am asking more about motive. The other coowner has emailed saying "remove your name from the title or I will force a sale and you will be jointly liable for the negative equity".

billy few mates

TX1 wrote: »

I understand this but I am asking more about motive. The other coowner has emailed saying "remove your name from the title or I will force a sale and you will be jointly liable for the negative equity".

I'd be surprised if they could 'force a sale' without your permission, surely you as a co owner would have to agree to the sale and the sale price and any loss in value would have to be borne equally...?

Also didn't think the bank would allow you to sell unless you had the funds to pay off any negative equity or shortfall in the value of the house at sale time? As it stands they have security over the property, they have no security over the shortfall.

TX1

billy few mates wrote: »

I'd be surprised if they could 'force a sale' without your permission, surely you as a co owner would have to agree to the sale and the sale price and any loss in value would have to be borne equally...?

Also didn't think the bank would allow you to sell unless you had the funds to pay off any negative equity or shortfall in the value of the house at sale time? As it stands they have security over the property, they have no security over the shortfall.

My understanding is only the bank could force a sale under those circumstances if the property was in arrears which it is not.

GM228

TX1 wrote: »

The issue is they moved in without my knowledge.

But they obviously had your former partners knowledge and permission.

Despite being a co-owner you may not have an equal share or interest any longer in the property.

TX1

GM228 wrote: »

But they obviously had your former partners knowledge and permission.

I think so ... which is why issued notice. As I have said they own a property so it is being done to frustrate my rights to the property.

TX1

GM228 wrote: »

But they obviously had your former partners knowledge and permission.

Despite being a co-owner you may not have an equal share or interest any longer in the property.

How would I no longer have an interest? I have paid the property tax every single year to date, lodged thousands into the other owners account, several hundred emails asking for access, key and to move in as far back as early 2011. Are you saying that my interest no longer exists due to me being unable to exercise my rights? This is what I am worried about.

Chuchote

I would doubt you're going to find a locksmith who's willing to let you in under the circumstances.

GM228

TX1 wrote: »

How would I no longer have an interest? I have paid the property tax every single year to date, lodged thousands into the other owners account, several hundred emails asking for access, key and to move in as far back as early 2011. Are you saying that my interest no longer exists due to me being unable to exercise my rights? This is what I am worried about.

No I'm not saying that, I'm saying it's possible not to have an equal interest depending on the circumstances.

There are two types of ownership - joint tenancies and tenancies-in-common. Under joint tenancies there is equal right of posession, under tenancies-in-common there is a right of posession, but it isn't an equal right. Also if a joint owner contributes to the price of a property/mortgage in different amounts, there is a rebuttable presumption that they share the equitable estate as tenants-in-common, in proportion to the amounts of their contributions. Have you raised this with your solicitor?

Also if a joint tenant behaves in such a way that they appear to regard themselves as holding under a tenancy in common, the law of equity may imply a severance on the basis of a “course of dealing” as per Wilson vs Bell [1843] 5 Ir Eq R 501.

Without knowing more details we don't know the answers to what I've raised, but you need to get a second opinion from a solicitor who has experience with tenancy rather than rely on what you hear here especially when you consider the consequences of any actions you take.

.......

This post has been deleted.

GM228

TX1 wrote: »

My understanding is only the bank could force a sale under those circumstances if the property was in arrears which it is not.

Where there is a dispute one owner can affect a court sale through an application to the courts without the need for consent or agreement from the other owner.

Denny_Crane

On forcing a sale - personally that's exactly what I'd be looking for. Get yourself out from under this even if it costs a few bob.

Mrs OBumble

OP I've been thinking about this. You need a second opinion from a different solicitor i think.

matrim

Was the tenant playing rent and how long ago did you issue the letter for them to leave? How much notice did you give?

It doesn't matter if it wasn't registered with the PRTB the tenant still has rights. In fact you could be liable for back tax and fines for not registering. If you do just move in and kick them out you could be fined for illegal eviction

TX1

....... wrote: »

I'm confused how you think you can just waltz in and take over a property that you have allowed to be rented out for 8 years?

How can you say there s no tenancy? The tenancy exists by dint of the fact that someone has been renting it for 8 years.

Why did you not assert your rights over it before now? Just because your circumstances have changed that doesn't give you the right to make someone homeless.

If you have not been paying the mortgage what interest have you got in it?

The property was rented out without my knowledge. I was making payments not realising it was being rented out for more than what the mortgage repayments were. When I realised this I immediately stopped payments as they were being pocketed and the rent was being used to cover the payments. It was 6 years ago and I have been attempting to move back in since realising that the other owner had moved out but have been ignored .... so much like now I am trying to get back in but cannot. I attempted BEFORE the property I now rent being sold so it is not just because I have fallen on hard times. Admittedly the hard times have increased the urgency in which the issue has to be resolved.

TX1

matrim wrote: »

Was the tenant playing rent and how long ago did you issue the letter for them to leave? How much notice did you give?

It doesn't matter if it wasn't registered with the PRTB the tenant still has rights. In fact you could be liable for back tax and fines for not registering. If you do just move in and kick them out you could be fined for illegal eviction

It was issued in early November. The correct notice and length of time to vacate and reasons etc all in the letter as per legislation. The letter was ignored, locks changed and spyhole installed on the door to the property.

Rachiee

The problem is the sitting tenant is not some squatter their tenancy agreement is with your ex. If you say they have to go and your ex says they dont why would they vacate. They have a legitimate tenancy with your ex. (even if your ex failed to register didnt oay tax their tenancy rights stand).
Also as much as you say you have never consented to the tenancy you have been aware of it for 6 years and have not forced the issue. Your interest in the property has dwindled as you have not been paying a mortgage on it. Its a complicated issue and really sounds like it will be need to be decided in the courts since your ex wont communicate with you.