Property Rights
Briefly there are no provisions akin to those found in the Matrimonial Causes Act 1973 which apply exclusively to married couples.
The first step in considering property rights is to examine the deeds to ascertain whether the legal and equitable interest are expressly stated, e.g. that the property is registered in sole or joint names or whether or not there is a declaration of trust confirming the property shares.
If the position is not clear in the deeds, the parties should try to reach a consensus on the basis of their respective financial contributions to the property i.e. who paid the deposit, who has been responsible for the mortgage repayments, has either party paid for major works at the property.
All of these may might give a non owner equitable rights in the property. It should be remembered that rights are not acquired by a non owning party just by living in the property. A financial contribution must be shown and also the claiming party will have to prove that it was always the intention that this contribution would give rise to an interest in the property.
Valuing the extent of the interest is often a complicated affair and the claiming party will need to produce evidence to confirm that contributions made e.g. evidence of the contribution to the purchase price or payment of the mortgage. Where there is no such evidence, the court will need to stand back and take a broad approach.
There are a number of statutory procedures that can be invoked to recover any interest. The most commonly used is Section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (Trusts of Land Act). This provision gives the court the power to determine the shares in the property and in turn Order that the property be sold so as to realise those shares.
The court is not, however, bound to make an order for sale and will have regard to a number of factors:
1) The intention of the parties who established the trust
2) The purposes for which the property is held
3) The welfare of any child who occupies the property as his home
4) The interests of any secured creditor
5) The wishes of the owner of the equitable interest in the land
Whether a sale will be ordered is a question for the court’s discretion but in essence will depend on whether the underlying purpose of the trust is continuing. The court will need to see why the house was bought. If it was to provide a home for the parties, that purpose will come to an end on the breakdown of the relationship. However, where the property is needed to provide a home for the children of the relationship, then the court is unlikely to order a sale until the children have left full time education or the occupier vacates the premises voluntarily.
Claims of this nature are complex and it is vitally important that you seek legal advice as quickly as possible in the event of a relationship breakdown to ensure that your rights in the property are secured pending agreement or other resolution of the dispute.
If you require any further advice or assistance please do not hesitate to contact a member of the Family Law Department on 0121 633 3233. Alternatively, please send an email to marcus.malin@younglee.co.uk.
