Enforcing a Tomlins order

[DEE.B]

My previous tenants owed me a lot of money for rent, after attending mediation we reached a final settlement figure which was then put into a Tomlins order. My tenant has made two late payments, which I have not taken action on, however he now tells me he cannot pay amount due today until the end of the month. I don't know what to do, I am not at all surprised that he has been paying late and this recent excuse come as no surprise either.
I can allow him to pay late and it won't cause me any financial difficulty but i don't want this to be a habit and more importantly I don't want this 'outside agreement' to have any legal implications that would cause me any problems. Can anyone offer any advice please..

[R0b]

Re: Enforcing a Tomlins order

Depends on the wording of your Tomlin Order but generally, a Tomlin Order would set out that proceedings are stayed except for the terms as agreed. In the event of a default you could apply to enforce the terms without the need to start fresh proceedings.

So you would normally make an application to the court to enforce the terms of the Tomlin Order within the existing proceedings or commence new proceedings to enforce the terms - again, it depends on the wording of the Order.

When making an application to enforce the terms, it's not just a case of formality, you need to prepare a robust application about the terms agreed, how the defendant defaulted on that breach (supported with evidence). You should include a draft order of what your seeking which should also include costs including application costs (if applicable).

[DEE.B]

Re: Enforcing a Tomlins order

Depends on the wording of your Tomlin Order but generally, a Tomlin Order would set out that proceedings are stayed except for the terms as agreed. In the event of a default you could apply to enforce the terms without the need to start fresh proceedings.

So you would normally make an application to the court to enforce the terms of the Tomlin Order within the existing proceedings or commence new proceedings to enforce the terms - again, it depends on the wording of the Order.

When making an application to enforce the terms, it's not just a case of formality, you need to prepare a robust application about the terms agreed, how the defendant defaulted on that breach (supported with evidence). You should include a draft order of what your seeking which should also include costs including application costs (if applicable).

The order states:
4. The parties agrees that time is to be of the essence with regard to the above installments
4.1. In the event of a default in payment the claimant shall be at liberty to enter judgement against the defendants for the full amount claimed in these proceedings inclusive of interest and costs, or the balance thereof due.
4.2 in the event such judgement is entered it is to be express as payable immediately and enforceable as such.

Based in the above how well would my case stand?

[R0b]

Re: Enforcing a Tomlins order

You have a time is of the essence clause meaning that such a breach would amount to a fundamental breach, and provided you can evidence how and when and why the tenant has failed to pay then I can see no reason why judgement will be granted in favour of you. Though if the tenant has been late with some payments and you have accepted that, it is arguable that you affirmed the breach and cannot rely on those breaches to seek judgment. Nothing wrong with mentioning the other breaches but just something to be aware of and you may haveto rely on the latest breach (if due date has now passed).

[DEE.B]

Re: Enforcing a Tomlins order

Once again thank you for your help.
He is due to pay each month on the 14th, each 14th he sends me a text message to say that he has made payment. Once I have had the chance to check my account I tell him that the money is not there and he argues that he will provide evidence that money has left his account etc. in the last instance I explained that it is not important whether money has left his account or not but rather when money shows on my account. If his bank is delaying process then he must take necessary action sooner to allow them to process in time.
I didn't take any action as per the order as its been a long hard battle going on for years and simply just hoped that he'd pay and I could put an end to this.
I have now checked my account and there is no money in it, I don't know whether he is late as usual or this time he just hasn't paid.
A friend has said not to engage in any conversation but to speak to a solicitor regarding enforcing the order, more time and more spent *sigh ;(