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Crown Courts
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Subject Topic: POCA confiscation order Post ReplyPost New Topic
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knightshaft
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Posted: 13 June 2012 at 06:37 | IP Logged Quote knightshaft

Mrs X owns a rental property that she once lived in with her husband. He has been convicted of POCA offences and schedule of available or realisable assets includes (and was agreed to in court) 50% of equity in her property.

She is refusing to cooperate in sale as no communication, legal or otherwise has been made to her.

Prosecution are supposed to have stated, off the record, that they didn't believe the property would be sold anyway.

What course of action is open to her?


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David Winch
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Posted: 13 June 2012 at 12:43 | IP Logged Quote David Winch

Is any action required of her?

The sensible option may be to wait until there is some enforcement
action against the property - then object at that stage asserting her
ownership rights.

David
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knightshaft
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Posted: 13 June 2012 at 17:30 | IP Logged Quote knightshaft

If it wasn't for verbal communication with her husband she would be completely oblivious. There has been no attempt to contact her by the court, prosecution or defence.

Confiscation order has been issued, as has the demand from the regional confiscation unit. As the equity is a relatively small amount, everyone seems to expect it to be paid quite swiftly but that is almost beside the point. The order is clearly based on a property that is not owned by Mr X and his 'interest' is by virtue of nothing more than marriage and having previously lived at the property.


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David Winch
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Posted: 14 June 2012 at 04:23 | IP Logged Quote David Winch

Presumably your client is Mrs X - not Mr X.

Mrs X has no status in the confiscation proceedings against Mr X.  She is not a party to those proceedings and has no interest in them.

David
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knightshaft
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Posted: 14 June 2012 at 04:41 | IP Logged Quote knightshaft

Yes that is correct but surely she must be approached for the sale of HER property. Clearly he has no legal right to force her to sell.

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David Winch
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Posted: 14 June 2012 at 04:52 | IP Logged Quote David Winch

Mr X has been ordered to pay a sum of money.  How that figure was calculated and how he finances the payment of it are matters of no concern to Mrs X.  Not her problem!

David
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knightshaft
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Posted: 14 June 2012 at 14:20 | IP Logged Quote knightshaft

I'm not sure I agree. As the order is 'secured' against the property, if payment is made by other means, then it is possible that any outstanding benefit from POCA could be claimed in the future once there has been an improvement in the housing market. Effectively resulting in the 50% being paid twice. The second would of course be a larger amount than the first and Mrs X would in effect be losing a larger amount of capital. 

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David Winch
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Posted: 14 June 2012 at 18:11 | IP Logged Quote David Winch

Knightshaft

Perhaps I have misunderstood your posts and your client's situation.

I have understood the position to be that the property is owned by Mrs X (and that Mr X is not a legal owner of it in any way) and that a confiscation order has been made against Mr X but there have been no enforcement proceedings in relation to the property owned by Mrs X.

I understand that because you said in your first post "Mrs X owns a rental property" and that "there has been no attempt to contact her by the court, prosecution or defence".

You now say that the order is 'secured' against the property.

Is it the case that the property is jointly owned by Mr X and Mrs X?  Surely not as you say his 'interest' in it arises (or more correctly does not arise) only because of their marriage and that he used to live there.

The order (in the absence of any enforcement proceedings) is an order against Mr X (only) requiring him to pay a sum of money.  To use the jargon, it is an order 'in personam' not an order 'in rem'.

If the order has been made on a mistaken understanding of Mr X's assets he needs to talk to his lawyers about appealing the order (or talk to new lawyers about suing his old lawyers!).

By the way, are Mr X and Mrs X still married to each other?

David


Edited by David Winch on 14 June 2012 at 18:19
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knightshaft
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Posted: 15 June 2012 at 07:07 | IP Logged Quote knightshaft

You seem to have it correctly.

a) Indeed Mrs X is solely named on the mortgage and deeds.
b) They are still married and have been since prior to the purchase of the property.
c) In the 'Description of assets' in the 'Schedule of available or realisable assets', it states 'Half the Equity in [address of property]'.
d) No enforcement order or charge has been placed on the property. It also still has tenants with small children in residence.

As I understand it, prosecution accepted that Mr X has no assets but claimed that as Mrs X has acquired her assets since marriage, Mr X is entitled to half. Hence the 50% claim on her property.


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David Winch
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Posted: 15 June 2012 at 09:06 | IP Logged Quote David Winch

As I understand it, the starting point when considering the ownership of property is the legal ownership.

In this case the legal ownership is 100% in the name of Mrs X.

It is then for a party who wishes to assert a beneficial interest in excess of his legal interest to show how that is the case.  Ascertaining whether there has been a common intention of the parties that the beneficial ownership is different from the legal ownership is an important part of that examination.  Was there any written or oral agreement between Mr & Mrs X that the ownership of the property should be other than 100% to Mrs X?

Failing that, does consideration of the conduct of the parties indicate that there was an implicit common intention that the beneficial ownership should be different from the legal ownership?

You may like to ask your client, Mrs X, whether she believes that herself and Mr X had a common intention that he should have a beneficial interest in the property (notwithstanding the fact that, although they were married at the time, the property and the mortgage were placed in her sole name).

It MAY be that, if the matter came to court, the court would decide that Mr X did have some beneficial interest in the property.  But, IMHO, it is a huge (and unsustainable) leap to say that Mr X is actually entitled to 50% of it simply on the basis that he is married to Mrs X.

If that was a decision of the Crown Court judge after hearing evidence in the confiscation proceedings (and one hopes Mr X had called Mrs X to give evidence on the point) then one would need to look carefully at the evidence on this point which the judge heard and consider the prospects of an appeal.  But that is a matter for Mr X and HIS legal advisers.

As far as Mrs X is concerned my advice would be that she should practice saying the following useful phrase: "Am I bovvered?".

If she wishes to be more supportive she should practice waving a tear-stained hankie ready for the possibility that Mr X may be carted off to serve a default sentence.

But I don't think she should be prepared to open her purse or cheque book to help her husband pay off the confiscation order.

David


Edited by David Winch on 15 June 2012 at 09:09
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