Legal Advice Summary Answer

Summary Answer – £38

Please see below an example of a question which could be asked and an example of how Legal Expert would respond.

Example Question: I have been with my partner for over 10 years and we have 3 young children. My partner has stated that she intends to leave. We have a mortgage in joint names and she wants to sell up.  I cannot afford to buy her out, and therefore, does she have a legal right to sell up without my consent?

Example Answer: I assume that both the mortgage and the deeds are in joint names and all 3 children are under 18 years of age and that they would live with your partner when you split up.

The situation seems to be two people own a house and one wants to buy it out but can’t raise the money they don’t want to sell it. The other one wants out or can’t raise the money and they cannot come to an agreement between them, or, one is ordered to be removed from the mortgage and either the lender will not consent to it because there are arrears or because the one who is to remain is not good enough for mortgage purposes either with the existing lender or with a new lender.

The Court will not order one party to sell to the other and of the other party wants to buy it, they have to buy it on the open market, via an agent if necessary. The Court would order the sale of the property. The Court cannot order a building society to remove one party from the mortgage. It can order a person to be removed from the deeds but not from the mortgage.

Anyone wanting to sell can apply to court for an order for sale under the Trusts of Land Appointment of Trustees Act and ask the Court to award costs against the other owner. In that respect, a solicitors letter threatening an application to court for an order for costs and an application for an order for sale, might focus the mind of the resident partner/spouse does not get their backside into gear. I would not be entering into extended correspondence, I would give it 14 days to come up with a substantive proposal failing which the application will be made to Court without further notice. The Court order can order the asking price, the price to be accepted, the agent to be used, which Solicitor is to be used, things such as neither party must be present when viewings take place and can order that the parties cooperate with the selling process.

It can actually order the resident person to move out of the property if it is convinced that they would obstruct the sale and put prospective buyers off.

A valuation would normally be based upon the average of three agents valuations.

The Solicitor’s costs for the sale would normally be divided equally but if the other owner was reluctant to sell, any Court costs for the application for an order that the property is sold would be borne by the reluctant party.

With regard to the division of proceeds, it doesn’t matter what both earn and it doesn’t matter what both put in, at this stage, the proceeds will probably be split 50-50. However, there are circumstances were this may slightly vary due to one of the parties conduct.

The situation is slightly different if your partner wanted to continue living in the house because she has three young children and you are both under a duty to provide a home for them until aged 18 so the chances are that she could hang onto the house until then unless a sale of it would produce a large amount of equity and in any event, enough to provide a home for her and the children until aged 18 when the house would be sold and the proceeds split 50-50.

Any contributions to capital or improvements meanwhile would be taken into account and may increase her share of the property. At this stage in time it is probably going to be in your best interest to agree to sell the property so that she doesn’t take advice and go and see Solicitors because you could end up out of the house and her in it.

My suggestion would be to agree to sell the property at a price that you both agree on, as quickly as possible and make other arrangements to live somewhere. Unless you have the children, there is no way that I can see that you would be able to hang onto the house because she is entitled to her half. Incidentally, if you are thinking of going for residence of the children whereby they lived with you in the house, the Court would only grant that if you had been the main carer of the children until now. The Court would not normally upset the status quo.