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In the case of V and W the court was required to rule on an application by one of the parties for an order for sale of the jointly owned property under the Trusts of Land and Appointment of Trustees Act 1996. In this case the parties had been in a relationship between 1995 and 2017 and had two minor children. At the time of the hearing, they still lived in the property they had bought together, but now that their relationship had broken down, the mother was mostly living in an en suite bedroom in the property.
She sought a declaration under s14 of the Act as to the parties’ beneficial entitlement in the property and an order for sale. The father had applied, under schedule 1 Children Act, for the mother’s share of the property to be held on trust for their son until he had finished his education.
The day before the final hearing, the father accepted there should be a declaration of equal beneficial interests in the property despite his previous position that the beneficial interest should be divided 85 to 15 in his favour. The issue that the court needed to rule on was therefore when the property should be sold.
The mother wanted a prompt sale while the father wanted the sale deferred for up to eight years when the youngest child turned 21 or finished full-time education. His Honour Justice Vincent noted that while the Trusts of Land and Appointment of Trustees Act and Schedule 1 Childrens Act applications place emphasis on different factors, both require the court to consider all the circumstances.
On the evidence, he found that the father had prevented the mother from taking on as much of a caring role as she wanted for her children because she had not been allowed in the house alone with them and had been made to feel uncomfortable, excluded and unwanted. That said, it appeared to him that the current situation most resembled a shared care arrangement and that the father would find it difficult to establish that he would be entitled to apply for an order under schedule 1 of the Childrens Act.
The court ordered in the mother’s favour that the property be put on the open market and sold for the best price possible, although one party could consider buying the other out.
If you have a property dispute or family law problem, why not contact one of Alexander JLO’s specialist lawyers in the fields for a free, no obligation consultation on 020 7537 7000 or peter@london-law.co.uk and see what we can do for you?
This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 21st July 2020 and is correct at the time of publication. With decades of experience in almost all areas of law, Peter is happy to assist with any legal issue that you have. His profile on the independent Review Solicitor website can be found Here
Hi myself and my ex split up a year ago we have a property together owned as tenants in common. She still lives in the property with our 3 year old daughter and I moved out last year. I have still always paid half the mortgage and my daughters maintenance money but the position I am in is I can’t afford to get a property of my own and am living with family. There is a lot of equity in the property and would give us both enough to get our own homes so we can both have quality time with our daughter. She won’t sale and is also not in a position to buy me out. Is there anything I can do as it all seams to be such a grey area.
Thank you for your question Jason.
As there is no mention of marriage, we will treat your situation as though you were cohabiting partners only.
In the event that it is not possible to buy one another out and your ex partner continues to refuse to sell the property, you can apply to the court for an order for sale. Such right is derived from the Trusts of Land and Appointment of Trustees Act 1996.
When considering your application, the court will look at a variety of factors, including the intentions of the parties, the purpose of the property and the impact of any sale. Therefore, the welfare of your daughter will be a big consideration of the court as she is a minor.
There are a variety of orders which the court can make, including making an order for sale, attaching terms and conditions to the sale such as postponing it until a certain event, and making judgments on how to divide the net proceeds of sale if the court considers it appropriate to account for any contributions made towards the property by a party who has not enjoyed the occupation of the property.
Given the varying factors which can influence the court, we recommend seeking legal advice before pursuing with your claim.
Martha Holland
Myself and my ex bought a house together but at that point I had a poor credit score so we agreed he should buy the property in his name and I contributed to the deposit. We cohabited and have two kids together. Now the relationship is broken down he wants me to move out. He has expressed many times when I’m carrying out maintenance work in the house that the house belong to me and the kids but now he wants us out. How do I proceed pleass
Dear Abby
Thank you for your interest in our blog.
This is certainly something that we can assist you with and, to avoid posting about confidential matters on a public forum, I have contacted you directly.
Peter Johnson
My son and his wife are getting divorced. The family home is jointly owned by them both. They have two children, 3 years and 1 years old. My wife and I have a Declaration of Trust in place. This was done at the time of the purchase with the solicitor who handled the conveyancing. It has also been registered with Title Land Registry. The DOT was created to secure our investment in the property and to allow us a place to live as Tenants in Common.
The divorce is on-going, and I want to get my money back from the house. What steps can I follow to achieve this?
Thank you for your interest in our blog.
I have emailed you directly to assist further.
Peter Johnson
Senior Partner