Kamlesh Patel & Ors v Isabelle Michelle Paule Awan & Anor
[2024] EWHC 464 (Ch)
RA v KS
23 June 2023
[2023] EWFC 102 (B)
Family Court
Two people owned a house together, and one wanted to sell it quickly. The judge said there wasn't a legal way to do this without the other person's agreement, and the person who wanted to sell had to pay the other person's legal costs.
Key Facts
- •Interim order for sale of a property ('the Barn') was applied for by W (applicant) and opposed by H (respondent).
- •Both W and H have legal and beneficial interests in the property.
- •The court raised the issue of jurisdiction to order vacant possession.
- •The application was made under FPR 2010 r20.2(1)(c)(v) and MWPA 1882 s17.
- •The court considered various case laws concerning interim orders for sale and vacant possession.
Legal Principles
Orders for sale of property under MCA 1973 s24A are generally final orders and cannot be made intermediately.
BR v VT (Financial Remedies: Interim) [2016] 2 FLR 519
Three procedural routes for interim sale orders: MWPA 1882 s17, TLATA 1996 ss13 and 14, FPR 2010 r20.2(1)(c)(v).
BR v VT (Financial Remedies: Interim) [2016] 2 FLR 519
FLA 1996 s33 evaluative exercise is required before terminating home rights and ordering vacant possession, regardless of procedural route.
BR v VT and WS v HS
FLA 1996 s33(3)(d) prohibits, suspends, or restricts occupation rights where the respondent has a legal and beneficial interest; s33(3)(e) allows termination of home rights.
WS v HS [2018] 2 FLR 528
FPR 2010 r20.2(1)(c)(v) does not provide a freestanding jurisdiction for interim sale orders; it requires an underlying statutory power.
WS v HS [2018] 2 FLR 528
Costs are determined under FPR 2010 r28.2, not r28.3, resulting in a 'clean sheet' approach.
FPR 2010 r28.1, r28.2, r28.3
Outcomes
The court lacked jurisdiction to grant W's interim order for sale and vacant possession under MWPA 1882 s17 because H had a legal and beneficial interest in the property, limiting the court's powers under FLA 1996 s33(3)(d) to prohibiting, suspending, or restricting, not terminating, occupation rights.
FLA 1996 s33(3)(d) does not allow for permanent extinction of occupation rights, and only permits restrictions, suspensions or prohibitions. The court found that terminating H's rights would require a TLATA 1996 application, which was cautioned against in case law.
W was ordered to pay H's costs of £5,500 (80% of claimed costs).
H was successful in defending the application, and the court applied a 'soft' costs-following-the-event approach, considering the circumstances and the parties' conduct. The court considered the proportionality of costs.