I am advising in a relatively straightforward TLATA matter which is likely to result in an order for sale and an equal division of net proceeds subject to some equitable accounting to take into account occupation rent. One joint owner is in exclusive occupation and the other joint owner has left following the breakdown of the relationship. The complicating factor is that the party that has left has now been served with an application for an occupation order under the Family Law Act 1996. This is due in court in early December. If he either consents to an occupation order (meaning he cannot return to the property to live) or the court determines that such an order is required, he will not be able to return to the property by virtue of this order. What would be the impact of this on his claim for occupation rent? My preliminary view is that if he is not entitled to occupy by reason of a court order then this would disentitle him to claim occupation rent.
I am not a family lawyer though I am familiar with the property and financial remedy aspects and their tax consequences. s12(2) TLATA overrides the right to occupy if the land is unavailable. If a court order is in force under s33 FLA prohibiting occupation I would say it was unavailable par excellence. s40 FLA allows a court to order compensation payments and, in general under this Part of the Act gives the court wide powers, so the content of the precise order is vital.