Sheriff grants division and sale of Bearsden home jointly owned by feuding ex-sisters-in-law
A sheriff in Dumbarton has granted a crave for division and sale of a property in Bearsden jointly owned by two feuding former sisters-in-law following several years of legal correspondence between them with no agreement.
Mridu Marwaha raised the action against her former sister-in-law Pamela Kumra for division and sale of a property in Bearsden of which they were pro indiviso proprietors. The defender averred that the pursuer was personally barred from seeking division.
The case was heard in Dumbarton Sheriff Court by Sheriff Frances McCartney
Asked to attend mortgage appointment
The pursuer had previously been married to the defender’s brother, from whom she separated in 2009 and ultimately divorced in 2012. She arrived in the UK from India in 1994 following her marriage in India, and lived with her husband and his family, including the defender and her parents-in-law, at an address in Great Western Road, Glasgow.
Shortly after the pursuer arrived in the UK her then father-in-law had enforcement action taken against him by HMRC for outstanding debts, as a result of which a new family home had to be found. A property at 17 Hillfoot Drive, Bearsden was found, but he was unable to obtain a mortgage or credit. The pursuer and the defender were then asked by him to attend an appointment with a mortgage broker to secure a £66,000 mortgage for the property.
It was agreed that the pursuer and defender would take joint title to the property. There was no agreement that either party would seek to modify their rights as joint owners of the property in any way. The defender averred that both parties considered the ‘true’ owners of the property to be the pursuer’s in-laws, but there was no such agreement in practice.
Within days of taking entry to the property, the defender’s behaviour towards the pursuer deteriorated to the extent that she and her husband felt compelled to move out. The defender removed the pursuer’s personal effects from the house and made threats against her. The pursuer did not return to live in the property after this.
The pursuer’s father-in-law died in 1998, after which she gradually stopped making payments towards the outgoings for the property. Realising she would not be able to return to the property, she attempted to seek resolution to her name being on the title for the property. She eventually instructed solicitors in 2006, with the defender eventually agreeing to a survey of the property in 2009.
The defender did not co-operate in the process of obtaining a survey, and continually delayed in instructing solicitors and negotiating an agreement in relation to the ownership of the property. After years of fruitless correspondence, the pursuer sought the remedy of division and sale.
The defender submitted that there was an express agreement that the pursuer had agreed not to seek the sale of property, or at least an implied term she would not do so while either of her in-laws were alive. Alternatively, the pursuer was personally barred from seeking division and sale due to her words and actions relative to the property. It was submitted for the pursuer that there was no evidence to support any of the defences raised by the defender, and that her evidence of the facts should be preferred to that of the defender.
In her decision, Sheriff McCartney began by considering the nature of any agreement between the parties regarding sale, saying: “That question is easily resolved on the evidence of the defender alone. On more than one occasion the defender’s evidence was that the purchase was rushed and there was no agreement prior to the purchase regarding any future disposal. Taken at its highest, the defender’s evidence was that the property was not bought for the pursuer and her then husband to stay in.”
She continued: “That might give rise to circumstances, or an expectation that the pursuer would have sought agreement about the longer term intention for a property that she was not anticipating living in. However, the defender’s evidence, at its highest, is not the same as evidence as to what such an agreement was. Evidence on who it was anticipated would live in the subjects is not the same as an agreement as to restrictions on disposal of the subjects.”
Of the defender’s evidence generally, she said: “It is fair to say that the impression left by the defender’s body language and choice of phrase showed not just a dislike of the pursuer but a deep seated resentment. […] She had to be reminded not to refer to the pursuer as ‘this girl’. She was frequently argumentative, even in examination in chief. I formed the opinion she was neither a reliable nor credible witness.”
Addressing the existence of any personal bar, Sheriff McCartney preferred the evidence of the pursuer, saying: “The pursuer gave clear and concise evidence that the intention of purchasing the property was as a home for herself, her husband, and her husband’s parents. She explained why; it was the cultural norm within her community that parents lived with a son and that son’s wife.”
She continued: “Through no fault of her own, the pursuer was unable to live there, and in fact, that was due to the behaviour of the defender. Whilst the pursuer could have taken formal legal action at that stage, in reality, the pursuer was relatively new to the UK, newly married and the difficulty arose from her sister-in-law. For some time after leaving the property, the pursuer hoped her father-in-law would be able to resolve matters to allow her and her husband to move back in.”
She concluded on this issue: “The pursuer’s evidence was that the instruction of solicitors in 2006 was not out of the blue. Her instruction of solicitors was as a result of wider family negotiations breaking down. Accordingly I do not consider that on the facts an inference can be drawn that the pursuer has acted in a way that she is personally barred from seeking the sale of the property.”
For these reasons, Sheriff McCartney granted the pursuer’s crave for division and sale and ordered a surveyor to be appointed within 14 days of the date of judgment.
© Scottish Legal News Ltd 2021