Am I entitled to a share of the house?
For many people, the dream of home ownership remains just that – a dream. And this issue with property is a problem not just affecting Millennials. Generation Rent includes people from all age ranges, including over-60s, thanks to the rise in Silver Splitters (those getting divorced after 60).
To achieve their goal of owning their own home, many people are now clubbing together with unmarried partners, friends, relatives, business partners or even strangers to get a foot on the property ladder.
And on the face of it, the legal owner is the person (or persons) whose name is recorded at the Land Registry as the owner, or in the case of unregistered land, whose name is on the title deeds. However that doesn’t necessarily mean that as someone who is not the “legal” owner of the property, you aren’t necessarily without a share in the property.
In particular, the law in England and Wales dictates that that even in cases where there is no clear outright clear ownership, the person without “legal ownership” could be found to be entitled to an “equitable” share in the property if they have made contributions towards its purchase or upkeep.this
Handling ownership disputes
But joint home ownership can lead to disputes. Our dispute resolution and family law teams understand how bitter and expensive such disputes can become. Therefore, we offer swift, practical advice, working with you to resolve the disagreement without having to make a Court application if possible.
However if going to court becomes inevitable, you can be confident that by instructing us, you have a law firm on your side that knows the law and understands the tactics needed to secure a win.
Here at Bonallack and Bishop, we provide property dispute advice to clients locally across Wiltshire, Hampshire, and Dorset and throughout England and Wales – from our offices in Salisbury, Fordingbridge, Andover and Amesbury.
To speak to one of our Joint Property Ownership Dispute specialists, just call FREEPHONE 0800 1404544 or one of our local office numbers [see below] for free initial phone advice.
What are the different types of joint property ownership?
Property can be owned jointly in two ways:
a) Joint tenants
b) Tenants in common
Joint tenants have equal rights to the entire property. In addition, joint tenants have a ‘right of survivorship, which means that if one joint tenant dies, the property automatically transfers to the other – the surviving owner. This type of property ownership is often chosen by married couples or civil partners.
Tenants in common are quite different. They own separate shares in a property and these shares may not be equal. For example, if you are buying a property with a friend and you put down 60% of the deposit, you may choose to own the property as tenants in common with you having a 60% share and your friend owning 40%.
Owning a property as tenants in common also allows for each owner to pass on their share of the property to whomever they wish via their Will.
You can switch from joint tenants to tenants in common and vice versa at any time.
Why do joint ownership disputes occur?
Joint ownership disputes can occur for many reasons, including:
· One owner wants to sell their share of the property and the other does not
· The relationship between the joint owners falls apart – particularly common for couples living together without being married or in a civil partnership
· The owners disagree about the size of their share in the property
· The property is inherited under a Will or through intestacy when one new joint owner wants to sell and the other doesn’t
· Disagreements over outgoing and repairs
Can’t agree? Don’t delay – get early legal advice
If a dispute between you and the other joint owner/s of your property occurs, it is important to try and resolve the situation between yourselves in the first instance.
If this proves impossible, you’re going to need good specialist legal advice.
Our disputes team is committed to helping preserve personal relationships; therefore, we will support and encourage you to come to an agreement without going to court – using methods such as negotiation or mediation.
However, if going to Court proves inevitable, we will fight your corner to get you the right result.
How do I avoid co-ownership disputes?
When it comes to preventing disputes between joint property owners, the old saying, “an ounce of prevention is worth a pound of cure”, applies.
Before buying a property with someone else, make sure you get legal advice as to which form of joint ownership is right for your circumstances, i.e. joint tenants or tenants in common.
Furthermore, the financial contributions made towards the initial purchase should be recorded and if one of you has put in more, draw up an agreement to ensure this is recognised on any future sale.
In cases where you and the other owners buy the property as tenants in common, it pays to put in place a trust deed which sets out the rights, shares, and entitlements each owner has regarding the property, plus details of how any dispute relating to the sale of the property should be resolved.
Our conveyancing lawyers will take the time to discuss your situation and provide expert advice regarding the best structure for your property purchase.
Can I sell a jointly owned property?
If all the owners of a property wish to sell, there is no problem. However disputes arise when one party wishes to put the property on the market and the other/s do not.
One way to resolve the dispute is for the party resisting the sale to buy-out the other. However, sometimes this simply won’t be possible – for example, where the co-owner wishing to sell has inherited a share of the property under a Will.
In these circumstances it may be possible to apply to the Court for an Order for Sale.
Can a person move into my jointly owned home without my permission?
A co-owner who wants their partner to move in, or an ex-spouse still living in the jointly owned family home who wishes to start cohabitating with a new partner can cause deep distress to other owners. And that can quickly turn into a genuine dispute.
Every owner has a right to have guests in their home. However, if the circumstances are to be permanent or at least semi-permanent, it can lead to what is known legally as “an implied licence to occupy” being granted to the third-party. If you want a quick path to an expensive and stressful situation, here is a perfect example.
Rather than let the situation fester, thereby risking an implied licence and the potential difficulty of removing the person from your home, talk to us about how you can remedy the situation. Our Solicitors will take the worry off your shoulders and provide clear, practical advice.
Can I evict my partner from the home?
If you are a joint owner of the property your partner cannot simply evict you. However, they can apply to the Court for what is known as an Occupation Order. This type of order sets out who can live in the family home, who can return and who should be kept out.
Occupation Orders can even set out a part of the house each owner can live in. They can also set out who must pay certain bills and outgoings in relation to the property. However, Occupation Orders can only be temporary. They do not affect the ownership of the property.
Our team can assist you in applying for or defending an application for an Occupation Order. We have an extensive family law team who will work with our disputes team to ensure you receive all the advice and representation you need to protect your interests.
Joint Ownership Disputes – What is a TOLATA Claim?
The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) provides jurisdiction to the Courts to make certain decisions about the ownership of land. The main types of TOLATA applications relate to:
a) Who has the right to occupy a property?
b) How is the property owned?
Courts can only make a declaration of ownership under TOLATA; they cannot vary who owns what proportion of a property subject to dispute. However, the Court does have the jurisdiction to order the sale of a property subject to a TOLATA claim – and these kind of orders are becoming increasingly common, as the number of people living together and owning property together increases.
TOLATA claims often arise in cases of separating cohabitees, who, contrary to popular belief, do not have the same rights as divorcing couples when it comes to the sharing of property and assets.
These types of claims can be very complex. However our team have the necessary practical experience to win these kind of claims.
Are TOLATA claims heard in private?
TOLATA claims are normally heard in an open Court. However, in a dispute between cohabitee which involves children, an application can be made under Schedule 1 of the Children Act 1989 so that any court proceedings will be heard in private.
Our Solicitors will advise you on the best option.
Legal and beneficial interests – is there a difference and why does it matter?
Yes, there is certainly a major difference between holding a legal or beneficial interest in a property. In short, the person who owns the legal interest in any property is the one who owns the legal title of the land. Their name, for example, would be listed at the land registry as the legal owner.
But a beneficial interest is different. A beneficial owner has been described as someone entitled to the benefits of the property. In reality, for example, that could mean that they have the right to occupy the home, or the right to share in the income or sale proceeds from a property.
Why does it matter? Without either a legal or beneficial interest, you may not be entitled to live in a property – or receive any of the proceeds, of sale for example.
This is not normally so much of an issue with divorce – unless the marriage has been extremely short. That’s because all assets, whether legal or beneficial, are considered as family assets and available for distribution between the parties by agreement, or if necessary, by the court.
But when it comes to cohabitees, business partners or just friends owning a property, in the absence of a legal interest, establishing a beneficial interest is essential.
How is a beneficial interest in a property established?
In order to substantiate a claim to beneficial interest in a property, the claimant will need to prove that they have made one or more of the following types of contribution:
• the costs of purchase (financial)
• the mortgage, rates, etc. (financial)
• working to renovate, improve or maintain the property (non-financial)
• paying other household bills so that their ex-partner can pay the mortgage, etc. (indirect financial)
These sort of claims can prove a really tricky – our experienced family law solicitors plenty of experience of this area of law and can provide the the legal advice and representation you need.
Joint ownership – problems with mortgage default and repossession
One problem with owning a property with friends or a new partner is they may not as careful as you are about paying their share of the bills. Or they may have defaulted on payments in the past. In these kind of situations, you could find your home at risk, as the creditor (normally a bank) looks to enforce a sale of the property you own together to liquidate the capital needed to pay the debt. In other words, if you own the property jointly, those creditors can try to recover that money from you too.
If a Charging Order over the property is granted to the creditor, it can apply for an order for sale under section 14 of TOLATA. In deciding whether to order a sale, the Court must consider the factors under section 15 of TOLATA, namely:
· the intentions of the person or persons (if any) who created the trust,
· the purposes for which the property subject to the trust is held,
· the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and
· the interests of any secured creditor of any beneficiary.
If all the co-owners owe the debt, then it is likely an order for sale will be made.
However, the good news is that if only one co-owner’s share is subject to the Charging Order, an argument can be made to prevent the sale. It is important to note the list above under section 15 is not exhaustive.
What happens if my co-owner has lost mental capacity?
If this happened then they simply won’t be able to legally make a decision regarding the sale of the property themselves. Instead you will need to apply to the Court of Protection if there is no applicable Lasting Power of Attorney. The Court of Protection can appoint a Deputy to manage the financial and property affairs of the person who has lost mental capacity. The Court can also make orders for the sale of the property.
Click here read more about the Court of Protection
If you find yourself in a joint property ownership dispute, please contact us immediately for a free phone consultation.