Property Disputes and Separating Cohabitees
We at Geoffrey Lurie Solicitors Newcastle have seen that property disputes are increasingly commonplace during the separation of married couples, partners, friends or relatives. Sadly such disputes can create long lasting tensions and unnecessary delays in the sale of the property.
Disputes can arise over who is entitled to benefit from the sale proceeds. If the property is in your partner’s name only and you have contributed towards the deposit and mortgage, you may be entitled to a share of the property. If so, consult a solicitor immediately, without delay.
If you are caught up in a dispute with your partner, friend or relative over the sale of a jointly owned property, we can provide specialist advice to protect your interests. If the property is owned in joint names, it is often presumed that each owner is entitled to 50% of the property value. That may well NOT be the case!
Your entitlement will depend on your individual circumstances and will usually be determined according to the Trusts of Land and Appointment of Trustees Act 1996. It can also depend on whether the property is owned as ‘Tenants in Common’ or as ‘Joint Tenants’.
At these times, you need professional, independent and objective advice. Our property solicitors can assess your individual circumstances, advise on your rights and help resolve any disputes.
Who Can Make a Claim?
A “common law” husband or wife, also called a cohabitant, is not recognised by the law in the same way as married couple or two people in a civil partnership. When it comes to property ownership, cohabitants have different rights to those who have a legally recognised partnership.
As the law does not recognise a common law wife or husband, their rights to property are very limited when compared with the rights of a spouse or a civil partner. (Although if cohabitants have children it is sometimes possible to make a claim against the property on behalf of a child).
A cohabitant can have an interest in property in two ways.
- Either as a joint owner,
- One cohabitant is the sole legal owner of the property, and the other has an interest via a trust
If the cohabitant who is the legal owner of the property does not acknowledge that the other cohabitant has an interest in the property, the other cohabitant can apply to the courts to have their interest recognised under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996).
Who Has An Interest In The Property?
The first thing which needs to be considered when assessing who has a claim is whether you jointly own the property with your cohabitant (or former cohabitant), or if it is owned solely by one of you. Ownership of a property is usually determined when the property is purchased, but it can also be transferred, or shared, at a later date.
Joint owners can own property as:
- Joint tenants. Joint tenants or owners own the property as a whole (ie you each own all of the property), which means on the death of either your share automatically passes to the surviving partner. The presumption is you each have a half interest, but this may not always be the case, dependent on the circumstances.
- Tenants in common. Tenants in common will both an agreed share of the property. In this case if one owner dies, their share of the property will not automatically pass to the other owner. They are free to dispose of their interest in the property however they wish (for example by Will)
(NB In these examples, a ‘tenant’ refers to someone who owns or co-owns a property, as opposed to some on who rents a property.)
A dispute often arises in cases where one cohabitant ( or former cohabitant) is the sole legal owner of a property.
If you are not a legal joint owner and there is no express trust in place, you must be able to prove that you have what is called a beneficial interest. To do this you must prove one of the following things:
- That you made a financial contribution towards the purchase of the property, with the intention of having an interest in the property. This interest would be equal to the amount of money you put in. This is called a resulting trust.
- That the intention was that you have a beneficial interest in the property, but the owner has taken steps to deny you of this. This is called a constructive trust.
- That you were led to believe, whether by the words or actions of the owner, that you had a beneficial interest in the property, which meant you didn’t seek to get a legal agreement. As a result, you feel it is unreasonable for the owner to maintain that they have sole ownership. This is called proprietary estoppel.
If there is no written express trust it can be difficult to prove that you have an interest in a property which is solely owned by your cohabitant. You should discuss this with one of our solicitors who will need as much information and documentation as you can give them.
What Should You Do Before Starting Court Proceedings?
Before you consider court proceedings, try to do what you can to reach an agreement first. Your solicitor can offer guidance on this and can recommend the best ways for you to go about this.
If you take out “TOLATA 1996 proceedings”, you will be the claimant. The person you make the claim against is the defendant.
Before you start a claim under TOLATA 1996, both parties should understand the position of the other with regards to ownership, and should try to reach an agreement or decide on a way to proceed. One of our solicitors will discuss what steps and action you may need to take.