We answer some of the most common questions about property ownership and jointly owned property disputes.
My partner and I bought our home jointly. We were never married but have now separated. How much of the property do I own?
The beneficial interest in the property can be held as joint tenants or as tenants in common.
If you own the property as joint tenants, it is likely that you both have an equal share in the property, and this will be the starting assumption of the Court.
If you own the property as tenants in common, you both have a distinct share in the property; this could be in equal shares or you may have agreed something different, for example 60/40. If there is an express provision in the transfer document stating how the beneficial interest is to be held, you will be bound by this unless you can show that the declaration was invalid/incorrect, there has been fraud, mistake or undue influence, or there has been a subsequent variation to the agreement.
Contact us if you require assistance in understanding how you own the property
My partner and I own our property jointly. We are not married and have separated. What happens to my share when I die?
If you own the property as joint tenants, your share would pass automatically to the other co-owner if you were to die. You may wish to consider severing the joint tenancy to protect your interest in the property.
If you own the property as tenants in common, your share will pass to your Estate and will be distributed in accordance with the terms of your will, if you have made one.
Contact us if you require assistance in severing your tenancy or want to speak about making a will.
Can my ex-partner force the sale of our jointly owned property?
If you are on the legal title, your ex- partner will need your consent or a court order to sell the property. The Trusts of Land and Appointment of Trustees Act 1996 (ToLATA) allows for one party to apply to the Court to seek an Order for Sale of the Property. The Court can determine the ownership shares at the same time if these are in dispute.
Contact us if you have received paperwork for an Order for Sale and need some assistance, or want advice on a dispute over the sale of jointly owned property.
What happens when a co-owner dies?
This will depend on several factors such as how the co-owner owned the property and whether or not the co-owner left a will.
If the property was held as joint tenants, it will automatically pass to the other co-owner but if the it was held as tenants in common, then the share will pass to the deceased’s estate in accordance with the terms of their will, if they made one.
You may wish to consider purchasing the deceased’s share, perhaps involving remortgaging the property to pay a sum to the estate or selling the property. If you do not consent to a sale of the property, the Estate may be able to bring a ToLATA claim against you for an order of sale.
Contact us if you require advice on dealing with jointly owned inherited property or defending a ToLATA claim.
My name’s not on the title deeds to the property but I have been paying the mortgage payments. What are my rights?
It needs to be established whether you can show you have a beneficial interest in the property and as such can prove that the property is being held on trust on behalf of a third party. You may be able to show you have either a resulting trust and/or a constructive trust. A ‘resulting trust’ arises where a party has made a direct financial contribution to the purchase of the property registered in the other parties’ sole name. A ‘constructive trust’ is more complex and involves evidencing there was an agreement, arrangement, understanding or promise between the parties and that you acted to your detriment upon reliance of this.
Contact us if you need help establishing whether you have a beneficial interest in a property.
How long do I have to make a claim regarding a property ownership dispute?
Claims involving civil law such as property ownership disputes usually have to be made within six years of an event.
Contact us if you would like to discuss making a property ownership claim.
What steps should be taken before issuing a ToLATA application?
Before court proceedings are issued, consideration should be given to other ways in which an agreement might be reached, often referred to as alternative dispute resolution (ADR), such as mediation.
Before commencing a ToLATA 1996 claim, sufficient information should be exchanged so that you and the other party can understand each other’s position and decide whether it is possible to reach a settlement or how to otherwise proceed.
Contact us if you would like to discuss the options for resolving a dispute over jointly owned property.