Separating from a partner is difficult enough without the additional stress of disagreeing over a jointly owned home. But what happens if you want to sell the property and your ex-partner refuses?
When a relationship ends, deciding what should happen to the family home can become one of the most challenging issues to resolve.
Perhaps you have moved out but remain responsible for the mortgage. Your former partner may still be living in the property and refusing to discuss a sale.
Alternatively, you may both want to move on but cannot agree on the property’s value or how the proceeds should be divided.
If you jointly own a property in England or Wales, you may have legal options even where your former partner refuses to cooperate.
However, your rights will depend on the ownership arrangements, your financial circumstances and whether you were married or in a civil partnership.
What Happens to a Jointly Owned Property When You Separate?
When two people jointly own a property, separating does not automatically change their legal ownership.
Both individuals may continue to have rights and responsibilities relating to the property, regardless of whether one person has moved out.
This can create difficulties where one person wants to sell and the other wishes to remain.
The legal position depends partly on whether the property is owned as joint tenants or tenants in common.
Joint Tenants
Joint tenants own the property together, and neither has a separately defined share of the beneficial ownership.
If one joint tenant dies, their interest normally passes automatically to the surviving joint tenant.
Tenants in Common
Tenants in common hold distinct beneficial shares in the property.
These shares may be equal or unequal, depending on the ownership arrangements and any relevant agreements.
A person’s share can generally pass under their will rather than automatically transferring to the other owner.
Understanding the ownership structure is an important starting point when deciding how to deal with a property following separation.
Can Your Ex-Partner Refuse to Sell the House?
A jointly owned property will generally require the involvement of all legal owners to complete a voluntary sale.
If your former partner refuses to cooperate, you may be unable to proceed with a sale through the usual process.
However, this does not necessarily mean that you must remain a joint owner indefinitely.
Depending on the circumstances, you may be able to apply to the court for an order concerning the property.
For unmarried couples, one of the principal legal routes is an application under the Trusts of Land and Appointment of Trustees Act 1996, commonly referred to as TOLATA.
What Is a TOLATA Claim?
TOLATA provides a legal framework for resolving certain disputes concerning property held on trust.
Under section 14 of the Act, a person with an appropriate interest in the property may apply to the court for an order.
Depending on the circumstances, the court may be asked to:
- Order the sale of a jointly owned property.
- Determine the parties’ respective beneficial interests.
- Resolve disputes about the exercise of ownership rights.
TOLATA claims are particularly relevant to unmarried couples who jointly own property but cannot agree on what should happen following separation.
However, TOLATA is not a general substitute for the financial remedy procedures available to divorcing spouses or civil partners.
If you were married or in a civil partnership, different legal considerations may apply.
Will the Court Automatically Order the Property to Be Sold?
No. An application for an order for sale does not guarantee that the court will order an immediate sale.
Under section 15 of TOLATA, the court must consider relevant factors, including:
- The intentions of the people who created the trust.
- The purposes for which the property is held.
- The welfare of any minor who occupies or may reasonably be expected to occupy the property as their home.
- The interests of secured creditors, such as a mortgage lender.
Other statutory considerations may also apply depending on the nature of the application.
For example, where children are living in the property, their circumstances may be relevant to whether an immediate sale is appropriate.
However, the presence of children does not automatically prevent a sale.
The court will consider the particular facts before deciding what order, if any, should be made.
What If You Have Been Paying the Mortgage Alone?
A common situation arises when one partner moves out but continues paying the mortgage while the other remains in the property.
You may feel that you should receive a greater share of the sale proceeds because you have made more substantial financial contributions.
However, paying more towards the mortgage does not automatically mean that your ownership share increases.
The position may depend on:
- The legal and beneficial ownership arrangements.
- Any declaration of trust.
- Agreements made between the parties.
- The history of financial contributions.
- Whether an equitable accounting adjustment may be appropriate.
Disputes about mortgage payments, occupation and financial contributions can become legally complex.
A solicitor can help assess whether those contributions may affect the final financial outcome.
What If Your Ex-Partner Wants to Buy You Out?
Selling the property on the open market is not always necessary.
In some cases, one partner may wish to remain in the home and purchase the other’s interest.
This is commonly referred to as a buyout.
The process will usually involve:
Obtaining a property valuation. An independent valuation can help establish the property’s current market value.
Calculating the available equity. The outstanding mortgage and other relevant secured liabilities will need to be considered.
Agreeing the value of each person’s interest. This may depend on the beneficial ownership arrangements and any relevant disputes.
Obtaining mortgage approval. If the property is mortgaged, the lender will generally need to approve the proposed arrangements.
Completing the transfer. Appropriate legal documentation will be required to transfer ownership.
It is important to ensure that you are formally released from any mortgage obligations where this is part of the agreed arrangement.
Simply moving out or transferring an interest in the property does not necessarily remove your liability to the lender.
What If You Cannot Agree on the Property’s Value?
Disagreements about valuation can prevent an otherwise straightforward settlement.
One partner may believe the property is worth significantly more than the other suggests.
Obtaining an independent valuation can help establish a reasonable starting point for negotiations.
In some disputes, expert valuation evidence may be required.
A solicitor can help you assess whether the proposed valuation is appropriate and advise on the best way to resolve any disagreement.
Can You Force Your Ex-Partner to Move Out?
Joint ownership can give both parties rights relating to occupation.
One owner cannot necessarily require the other to leave simply because the relationship has ended.
The position may be affected by court orders, occupation rights and other legal circumstances.
If there are allegations of domestic abuse, harassment or threats, additional legal protections may be available.
You should obtain advice before attempting to exclude a joint owner from the property or changing the locks.
What If You Were Married?
Where the parties are married or in a civil partnership, the family home may form part of wider financial proceedings following divorce or dissolution.
The court may have powers to make orders concerning property ownership, transfers and sales as part of a financial settlement.
These proceedings can involve considerations beyond the ownership arrangements recorded at HM Land Registry.
For this reason, it is important to establish whether the dispute should be addressed through family law proceedings rather than a standalone TOLATA claim.
Can You Resolve the Dispute Without Going to Court?
Court proceedings can be expensive and time-consuming.
Where possible, it is often sensible to explore alternative ways of resolving the disagreement.
These may include:
- Negotiating directly with your former partner.
- Solicitor-led correspondence.
- Mediation.
- Agreeing an independent valuation.
- Negotiating a buyout.
- Agreeing a timetable for selling the property.
A carefully drafted agreement can help establish clear expectations and reduce the risk of further disputes.
However, where negotiations are unsuccessful, court proceedings may become necessary.
How Penerley Solicitors Can Help
Disagreements over jointly owned property can create significant financial and emotional pressure.
At Penerley Solicitors, we understand how difficult it can be to move forward when a former partner refuses to cooperate with the sale of a property.
Our solicitors can advise on property ownership disputes, assess the relevant legal arrangements and help you explore the options available.
Whether you are seeking to negotiate a sale, resolve a disagreement over ownership shares or consider an application to court, obtaining legal advice can help you make informed decisions.
Contact Penerley Solicitors today to discuss your circumstances and explore the legal options available to help you move forward.
