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When a relationship ends and a property is jointly owned, one of the most common – and most frustrating – situations that arises is where one party wants to sell and the other refuses.
Whether the property was a family home or an investment, the inability to move forward can cause real financial and personal harm. The good news is that the law does provide a route to resolution, though it requires careful handling.
Understanding the legal position
When two people own a property together, the law treats that ownership as a trust of land. Both owners are trustees and beneficiaries, and the property is held on trust for them both.
The Trusts of Land and Appointment of Trustees Act 1996, known as TOLATA, is the key piece of legislation governing how disputes between co-owners are resolved.
TOLATA gives the court wide-ranging powers where co-owners cannot agree. Most importantly for our purposes, a court can order the sale of a property under Section 14 of the Act, even where one owner does not consent.
An application can be made by any person who is a trustee of the land or has a beneficial interest in it. You do not need your ex-partner’s agreement to make such an application.
What the court will consider
The court’s power is not automatic. When deciding whether to order a sale, it will take into account a range of factors set out in Section 15 of the Act, including:
- The intentions of the parties when the property was purchased, for example, whether it was bought as a family home or as a financial investment.
- The purposes for which the property is currently being used.
- The welfare of any minor children who occupy or might reasonably be expected to occupy the property.
- The interests of any secured creditors, such as a mortgage lender.
- The circumstances and wishes of the co-owners themselves.
In most cases involving a relationship breakdown, where the property has ceased to serve its original purpose as a shared home, the court will order a sale unless there is a compelling reason not to, such as the need to maintain stability for young children in the short term.
Where the property is held in joint names, the law presumes equal ownership (a 50/50 split), unless there is a written agreement providing otherwise, such as a Declaration of Trust.
If the parties contributed unequally to the purchase price or mortgage payments or if there are other arrangements in place the court can also be asked to declare the precise beneficial shares before proceeding.
Before going to court
Court proceedings can be costly and time-consuming. Before issuing a claim, it is worth exploring whether the matter can be resolved through negotiation between solicitors or through mediation.
Courts expect parties to have attempted to resolve the position without litigation and can impose cost penalties where alternative dispute resolution has not been genuinely explored.
That said, if your ex-partner is not engaging and the impasse is causing real financial harm, particularly, where there is a mortgage in both names that continues to accrue, it may be necessary to act swiftly.
If your ex-partner is refusing to sell a jointly owned property or if you are facing a claim from a former partner, we can advise on your position.
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