109 responses

  1. Jason
    April 6, 2016

    I currently own a house as tenants in common with two relatives. One of them decided to stop paying their 1/3 of the mortgage 5 years ago. They have agreed to do a transfer of ownership to us yet remain named on the mortgage. The mortgage provider is providing a letter to so they have no issue with this. I just wanted to know the rough cost for doing the transfer of ownership through you?

    Reply

    • Justin
      April 6, 2016

      Thank you for this – this is what is called by conveyancers a “transfer of equity” – see here: Transfer of Equity

      I do not handle this work myself but, depending on the particular individual circumstances, I would expect a conveyancer to charge up to about £500 + VAT and Land Registry copy, search and registration fees.

      I hope this helps.

      Reply

  2. Sara
    May 17, 2016

    Hi,

    If only one of you has the legal title to the piece of land but you are both beneficial owners, can you be joint tenants or would you have to be tenants in common?

    Thank you

    Reply

    • Justin
      May 17, 2016

      It can be either. In such a situation it is particularly important to have a declaration of trust, and that should specify how the beneficial interest is jointly owned: as joint tenants or as tenants in common

      Reply

  3. Darryl
    June 1, 2016

    I have a tenancy in common. We are selling soon and I have a 40% share of the house. When selling would we repay the bank then split 60% 40% or split 60% 40% then repay the bank. We have been paying 50/50 Mortgage repayments so both still owe 50/50 of the outstanding mortgage. This changes the amount I’m entitled too considerably.

    Reply

    • Justin
      June 1, 2016

      It does depend on exactly what has been agreed and (ideally) set out in a formal declaration of trust.

      There are the two possibilities you mention: if you and your co-owner have each agreed to pay 50% of the mortgage, then the 60:40 split should be first, with 50% of the mortgage repayment coming from each owner’s share. On the other hand, if there has been no specific agreement about the mortgage*, it is arguable that, as a 40% owner, you should only pay 40% of the mortgage, in which case the mortgage should be paid off first, with the remaining money being split 60:40.

      *The fact that you have been paying half the mortgage indicates that the first possibility applies, but if this is wrong then, not only should you get 40% of the gross less 50% of the mortgage, but presumably your over-payments historically should be corrected by a balancing payment being made by your co-owner to you, equivalent to 10% of the historical mortgage payments you have made.

      The fact that these alternatives exist demonstrates the benefits of having a proper declaration of trust in place setting out the detail, rather than simply relying on the Land Registry transfer form and stating the 60:40 split in it without covering other aspects.

      Reply

  4. anne
    July 26, 2016

    How do we set up a tenancy in common for five people and a vacation home?
    Three of my cousins want the use of the house and land and me and my sister just want the use of the land?
    My sister and myself have a home in the same area so we dont want to use the vacation house..but we dont want to lose the property.

    Reply

    • Justin
      July 27, 2016

      Under English law, the maximum number of people who can own the legal title to land is four. You could decide which four of you would be legal owners, and all five enter into a deed of trust, stating that the four legal owners hold the ownership on trust for all five, and setting out each person’s rights and responsibilities relating to the property.

      If you want detailed advice on this, I suggest you take the discussion off-line: either with me or with a local lawyer of your choice.

      Reply

  5. Michelle Thompson
    August 17, 2016

    Good afternoon

    I am buying a house with my partner and I have put in all the deposit. So say for example this is 10K. We also intend to have a new kitchen fitted once the house is ours and just again say for example that is another 10K. I don’t understand how this goes down legally on the paperwork. So say we split up and we had to sell the house in a few years time and just say the house sold for 10K more than what we paid for it. How do I guarantee I get my 20K back? not that of course I am intending on splitting up I just want to ensure my money is protected. Its just very confusing as I don’t want a percentage of the 20K back, I would want it all back if it should sell for 10K more, otherwise of course I understand all I would get back is my deposit if it was to only sell at the same price we bought it for.

    If you can advise me, I would very much appreciate it 🙂

    Many thanks
    Michelle

    Reply

    • Justin
      August 17, 2016

      There are various ways to deal with this –
      1: The simplest is to say that, on a sale, you get back £20,000 (your £10,000 deposit plus the £10,000 on the new kitchen) before the rest of the sale proceeds are shared – equally or in whatever proportion is appropriate bearing in mind who pays for the mortgage and other outgoings
      2: A refinement of this would be to add interest at an agreed rate to the sum to be paid out to you
      3: A further refinement would be to agree that your £20,000 investment represents (say) 5% of the value of the property and that you should get 5% of the value of the sale proceeds before the balance is split.
      4: In any of these cases, you can agree that the minimum you would be paid is £20,000 (protecting you if property prices drop)

      I hope this helps.

      – Justin

      Reply

  6. Bill
    August 19, 2016

    Hello Justin, I own a 50% share of a house I’ve lived in for 20 years with my partner who has died lie aving her share to her 2 adult children who have effectively forced me to sell, the sale is nearing completion but I am having problems in that the conveyancer doesn’t keep me informed of what’s happening and has told me now that she is intending to charge me 50% of her fees which I have not agreed and that this is the usual practise if I don’t agree she will not release the proceeds of sale, is it right that I have to pay 50%, many thanks

    Reply

    • Justin
      August 20, 2016

      A good question – and one to which I don’t really know the answer!

      Normally, the owners of a property pay the costs of its sale in proportion to the shares in which they own the property. However, where you are being forced to sell, it seems wrong you should also pay for it.

      I assume there is no court order requiring you to pay. If so, then it seems to me that your liability depends on whether you have agreed to pay or not. If you have signed the lawyers’ terms of business, the likelihood is they include a provision that requires you to pay. Atlernatively, there may be a declaration of trust that includes provisions for who pays. If neither is the case, they cannot force you to pay. I suggest, therefore, you check what you have signed for.

      Certainly, they cannot hold onto your share of the proceeds – unless, as I say, teir terms of business include a provision that entitles them to.

      I hope this helps.

      – Justin

      Reply

  7. Stephen croft
    August 22, 2016

    Hi
    Friend of mine is joint owner of a property with his mum dad and sister

    Three want to sell and sister is refusing

    Can three to one force a sale of the property so they can realise their personal quarter shares in cash ?

    Thankyou in advance

    Reply

    • Justin
      August 22, 2016

      Assuming there is no existing agreement to the contrary, yes.

      Under English law, the joint legal owners of a property hold it as trustees with a duty to sell, but the power to delay the sale. The power to delay sale can only be exercised while all the trustees agree to exercise it, so if one trustee wants to sell the other trustees have to comply with their duty to sell.

      This can be enforced by getting an order for sale from the court.

      The position is different, however, if (for instance) there is a trust deed with a provision requiring all the owners to agree to a sale.

      I hope this helps.

      – Justin

      Reply

      • Linda
        September 14, 2016

        Hello,

        How long and what would the approximate cost of getting a court order to sell be?

        Thank you in advance.

        Reply

      • Justin
        September 25, 2016

        I’m afraid it is impossible to give any firm estimate of either cost or time, as each case depends on its own circumstances. In a straightforward case, you should expect a cost of £2,000 to £5,000 and a timescale of 6 to 12 months: broad bands, I know, but it is impossible to be more precise.

        – Justin

        Reply

  8. Sarah Pettet
    September 23, 2016

    We have a tenancy in common. Between myself my husband at 25%each with my mum at 50%. My mum has died intesate. There is a mortgage which has only ever been paid by myself and husband. I have a brother and sister. My mum also had 1500 debts and no other asset’s. Would her portion go to myself and my husband and can we be forced in to a sell due to the debts? We have no way of paying for debts or probate.

    Reply

    • Justin
      September 25, 2016

      Assuming there is no declaration of trust or other evidence of the three owners’ intentions/agreement, it seems that your mother’s estate comprised her 50% share of the house and various debts. Those debts need to be paid off, and the only way of raising the funds for that would be to sell her share of the house – which might involve selling the house as a whole, but it would be better if you and your husband could buy out your mother’s share.

      You do not say who benefits under your mother’s intestacy: whoever it is would be entitled to receive full value for her share in the property after the debts are paid off. If you are the sole beneficiary, you effectively need to pay off the debts and are then entitled to have your mother’s share in the house transferred to you. If others are entitled as well, you need to buy out your mother’s full share so the net estate (after the debts are paid) can be distributed.

      I hope this is clear

      Reply

  9. Tom
    September 29, 2016

    Hi, with a joint tenancy if one party wants to hand there share in the property to the other party with no fees changing hands is it as straight forward as signing over your share. Or would it mean the agreement having to be changed to tennats in common first before the shares can be transfered.
    Many thanks

    Reply

    • Justin
      September 29, 2016

      There is no need to change then transfer – the transfer can be by two joint tenants to one of them.

      Please note: while no money may change hands, if the property is subject to a mortgage, the transferee (recipient) is deemed (for Stamp Duty Land Tax purposes) to pay the transferor (donor) half the value due under the mortgage at the date of transfer.

      – Justin

      Reply

  10. mike connors
    October 19, 2016

    Hi Justin
    I am the executor and beneficiary of my brother’s estate which includes a property he owns with two other co owners as tenant in common. How do I add my name at the land registry to the property in order to become co owners with the other two co owners
    Mike

    Reply

    • Justin
      October 19, 2016

      Your question is just one aspect of a larger picture that should be considered (is it appropriate to add you as a co-owner, or should the property be sold, etc?) but to answer it directly, and assuming the transfer you have in mind is appropriate: you and the surviving co-owners would need to sign a Land Registry Transfer form (TR1) to transfer the title to the property from the names of the co-owners and your late brother into the names of the co-owners and you, and lodge this at the Land Registry with evidence of your brother’s death and an application (Land Registry form AP1) to register the Transfer.

      I hope this helps.

      – Justin

      Reply

  11. Julia
    October 20, 2016

    Hello. My husband and myself own a bungalow outright in joint name. Our mortgage finished in 2013.
    We are both retired and it has been suggested that we apply for the property to be held as “Tenants in Common”
    It is unlikely that we will move home now but would like to secure the property for our daughters should we need to receive care at a later date. We have mirrors wills at the moment that leave the property to each other and then our daughters?

    Reply

    • Justin
      October 20, 2016

      That is probably a very sensible idea: the full proposal is that, if you convert your “joint tenancy” (under which the surviving co-owner automatically inherits the whole property if one of you dies) to a “tenancy in common”, you can each leave your half share of the property to your children – rather than to the surviving co-owner. This “ring-fences the first 50% for the children, preventing it being taken for long term care fees for the survivor.

      The problem with this is that it can leave the survivor vulnerable: you don’t want the children to force a sale of the property to get their value out, leaving the survivor to find new accommodation with only 50% of the property value for this. The remedy for this is to make it clear in your Wills that the property must not be sold without the consent of the survivor, who can live there rent-free; further, if the survivor wants to move, they should be allowed to use the children’s share of the sale proceeds towards buying replacement accommodation (though the children’s interest would still be ring-fenced in the new property).

      If this suits you, you can implement it by –
      (a) converting the joint tenancy to a tenancy in common – Land Registry form SEV and
      (b) making new Wills (or a codicil to your existing Wills) to leave your respective shares to your children, but subject to the conditions mentioned above.

      I hope this clarifies things

      – Justin

      Reply

  12. Ann
    February 5, 2017

    Hi, my daughter and husband own a house as tenants in common and the mortgage is in joint names but is paid from her husband sole bank account. He has recently died leaving no will. There is plenty of funds in his bank account to continue paying the mortgage but the bank has frozen the account and refused to make any payments.What does she need to do?

    Reply

    • Justin
      April 26, 2017

      As your son-in-law’s widow, your daughter almost certainly inherits the estate (or a large part of it, depending on whether there are children and on the value of the estate). There is a method of deciding who gets what here: https://www.gov.uk/inherits-someone-dies-without-will

      As the widow, your daughter can apply for “letters of administration” (the equivalent of probate where there is no Will); further details here: https://www.gov.uk/wills-probate-inheritance/if-the-person-didnt-leave-a-will

      Armed with the letters of administration, your daughter can get the bank to release the funds in the account so they can be distributed as required by the rules of intestacy.

      Meanwhile, she should write to the mortgage lender to explain the position, so they know things will be sorted out

      I hope this helps

      Reply

  13. Anne youngman
    February 15, 2017

    If a continuing trustee becomes mentally ill can the other trustees sell the property or does the power of attorney take over her role

    Reply

    • Justin
      April 26, 2017

      If the appropriate power of attorney has been granted, the attorney can act for the mentally incapable trustee. However, depending on the terms of the trust, the other trustees might have power to remove or replace the mentally incapable one.

      Reply

  14. John
    February 16, 2017

    Hi Justin,
    Firstly this article is very informative thank you. My wife bought a property with our daughter with ownership and mortgage split 2/3 and 1/3 respectively. This arrangement was firstly to help our daughter buy a property and also to enable my wife to stay at the property once every 1-2 weeks (when it was convenient for our daughter) as it was close to her work. Unfortunately the relationship between ourselves and our daughter has broken down and she is refusing access on the grounds of it is her home. My questions are can she refuse access and if necessary can we force a sale .

    Reply

    • Justin
      April 26, 2017

      I assume there is no declaration of trust in place that governs the situation. However, it sounds as though the purpose of the purchase was to provide a home for your daughter and her family, with occasional visits (with your daughter’s permission) by your wife.

      The main purpose seems still to apply, so I don’t think your wife can insist on either access or a sale on the ground that her relationship with your daughter has broken down

      I appreciate this is not what you want to hear, but I fear that is how the courts would interpret the original arrangement and, in the absence of agreement as to what would happen in the current circumstances, I don’t think there is any way out. Sorry!

      Reply

  15. Jessica
    February 24, 2017

    Me ex and I own our property as joint tenants we both hold the legal title. He has not lived her for 23 years and has not contributed to the mortgage payments at all. I want to be 100% beneficial owner and want to transfer the legal title to me so as to draw down equity in the property. Can you explain how i can do this

    Reply

    • Justin
      April 26, 2017

      You would either need to get him (and the mortgage lender) to agree to the property being transferred into your sole name, or you would need to get a court order to force this. Either way, I think you should first have a detailed discussion with a solicitor, based on the actual circumstances of your case. The solicitor can then contact your ex to see whether he will agree, or apply to the court for an order if your ex will not cooperate (assuming you have good grounds for making the application – mere absence is not enough)

      Reply

  16. James Young
    March 11, 2017

    My wife is registered as having joint title to a family property with her two brothers.The two brothers live in the house ,one with his wife and two adult children although they have another rental property. Can the sole brother and my wife force the sale of the property ?

    Reply

    • Justin
      April 26, 2017

      Assuming there is no declaration of trust or other agreement preventing it, then any co-owner can insist on a jointly-owned property being sold, if necessary getting a court order to force this. Accordingly, the answer to your question is, “Yes”

      Reply

  17. Martin
    March 20, 2017

    Hi Justin
    Presently we have house with joint ownership we both have children from the previous marriage!
    I want to apply for tenants in common to make sure my children receive their equal share of the property and making sure she will retain the house untill she dies! but my partner ( who we are about to get married later this year) is very unsure about this.
    My question is could I apply for my half only and leave her half has joint ownership?

    Reply

    • Justin
      April 26, 2017

      No: either the house is held by you as “joint tenants” or it is held by you as “tenants in common” – you cannot have a sort of half-and-half arrangement

      However, severing the joint tenancy to create a tenancy in common can be done by either owner, even if the other does not want it done

      Reply

  18. Leigh Roberts
    April 7, 2017

    Hi,

    I am a tenant in common with my ex partner, the father of my children who has recently died intestate. Should I not have a say in the solicitor and estate agent instructed to sell the property? Also, the family have taken our keys for the property and changed the locks – surely this is illegal as when we took out the tenancy in common we were informed that we had equal access rights to the property, would this really change upon his death?

    Hope you can help please.

    Reply

    • Justin
      April 26, 2017

      The answer to both your questions is “Yes”: you should have a say in who handles the sale of the property and you do have a right of access meanwhile. Your co-owner’s death does not change that: his administrator(s) step(s) into his shoes, but this does not mean you lose your rights as a co-owner

      Reply

  19. Jane
    April 8, 2017

    Hello
    A friend of mine is joint owner of a collection of property worth possibly over 1 million. Her sister and family live in part of the property (rent free) and now my friend wishes to sell and split the procedes 50:50. My friends sister has agreed to sell (in writing) but is stalling the sale and also owes money to my friend for generated income from the property.
    1. Can my friend set a court date without the use of a solicitor to ask the court to force the sale, if it went to court who is liable for the costs?
    2. Can my friend initiate the sale of some or all of the property and split the procedes with her sister 50:50 since she has agreed to sell, or will a sale agent require both signatures to procede?
    3. Can my friend ask the court to place an order on her sisters half of the proceedes to pay in full the 50% share of the income generated from the property?
    Thank you

    Reply

    • Justin
      April 26, 2017

      In reply to your questions:
      1: I strongly recommend using a litigation solicitor to apply to the court for an order for sale. Litigation really is not for dabbling in and, though you will need to pay funds on account up-front, if your friend’s sister is being unreasonable in refusing or delaying to cooperate in the sale, she will be ordered to pay your friend’s legal costs at the end – if necessary out of her share of the proceeds of sale
      2: The agent should require instructions from all the legal owners, so an order for sale is the first step
      3: In a word, “Yes”

      I hope this helps

      Reply

  20. Tom
    April 12, 2017

    Hi Justin,
    I’ve seen the government guidelines to add my wife to my properties and understand this is just a case of completing forms TR1 and AP1? However, although both are without debt, one is freehold but the other is leasehold. Do I need to fill out any additional forms for the leasehold property?
    Thank you

    Reply

    • Justin
      April 26, 2017

      That depends on the terms of the lease: it may require you to get the consent of the freeholder, and will almost certainly require you to notify the freeholder of the change of ownership.

      If you apply direct to the Land Registry, you and your wife will also need to complete a Land Registry form ID1 each as well

      Reply

  21. Donna Holmes
    April 12, 2017

    Hi justin. I split with my partner 5 years ago, we own a home as joint tenants for a number of years I have been trying to sever ties and sell the property or he has made multiple offers to buy me out, all to no avail. Due to harassment issues by him and his wife I was forced to move out, now they are in the process of moving in and making plans to remain there until his step daugher is 18 in 14 years. I am worried what my equity would be if he makes more contribution due to his longer term in the property.I did pay all the mortgage and up keep soley for the first 5years. Will this effect my rights to equal share?

    Reply

    • Justin
      April 26, 2017

      It comes down to a question of why the house was bought in joint names originally. If it was to be owned equally, then making extra contributions will not, of itself, increase that person’s stake in the property. Further, if one owner is living at the property, they should pay “half rent” to the non-occupying owner, and this could be in the form of extra contributions.

      Reply

  22. susan
    April 14, 2017

    I own the inherited mortgage free house I live in with my three non-residing siblings under tenant in common ownership. So there are four names on the title deeds. I will be moving out soon and want my name removed from the title. I will be receiving no money for this. I want nothing more to do with this house. Bottom line do I need a solicitor to action this or can I do this myself via the land registry? And do my three siblings need to know what I’m doing?

    Reply

    • Justin
      April 26, 2017

      The mechanism for removing your name from the title would be for you and your siblings to sign a transfer from the 4 names to 3, so this would require them to cooperate. They would need to register the transfer at the Land Registry, and by far the easiest way to handle this would be for them to instruct a solicitor to prepare the transfer document, get it signed up and registered.

      You do not need a solicitor yourself, but you will need to prove your identity to the Land Registry’s satisfaction: they have a form (ID1) for this.

      Please note that removing your name from the title does not release you from liability under any mortgage you may have signed. It may also be appropriate for the transfer to include an indemnity in your favour in respect of any future breaches of any restrictions or obligations that may affect the property

      Reply

  23. phyllis northam
    April 26, 2017

    Me and my brother jointly owner of a house and land and he just got divorced and gave her a lifetime estate in the house. I had no idea until now can he give her lifetime estate without my consent. I do not agree with this what should I do to get that taken out of their divorce papers i do not agree with that

    Reply

    • Justin
      April 26, 2017

      If you are on the title register as a joint owner, no order relating to the property should be made without you being given a chance to put your case forward. I suggest you ask your brother for his solicitor’s contact details, so you can contact them to make your objection known

      Reply

  24. Carolyn
    April 26, 2017

    My son and his now ex girlfriend took out a mortgage 2.5yrs ago but needed a bigger deposit for the lender to offer the mortgage. I stood in and gifted a £40,000 deposit. A letter of trust was drawn up by a solicitor and it was signed by both my son and his girlfriend at the time, myself and a witness and held with the lender. This stated that his ex had no claim to that money, however it also clearly identified to myself that if the house depreciated so would my £40,000 in order that the lender still got their money. The title of deed was signed and agreed by both that ownership would be of unequal amounts his 62.5% due to my loaning the deposit and her 32.5%. They also spent money on the property although this was not necessary but to put their mark on it, by changing the double glazing, new bathroom suite and new kitchen which with decoration came to £14000, this was saved for and paid for as and when they had enough money. Although his ex paid the mortgage as only wanting one direct debit, he paid everything else by direct debit, council tax, water rates, building & contents, elect, heating, phone, tv licence, shopping. They both paid their own petrol, car tax and car insurance and mobile phone bills. They have now split up. She has told my son she does not wish to live there and she will stop paying the mortgage. My son has been to the lender and it is too late this month to move it to his bank account so he will have to check on 2nd May to see if it has been paid and if not make a manual payment over the phone to prevent his credit score being blackened. He is trying to be amicable and asking her does she wish to sell it and both move on with their life, does she wish to see if she can buy him out with support as she would not afford the mortgage on her wage alone, and that he has already sought advice that he does not earn enough to buy her out but his father and I are willing to help which means he will keep the house. The price of the house has not gone up and remains the same so there is no equity in it. He has given her options to decide what she wants to do. However she has been ignoring him and not responding to his messages. She chose to move out he did not ask her to leave. He has since contacted her asking for her to meet to discuss things and she is saying she has no interest in the property in living there, however she is not signing the property over to him and she is not removing herself off the mortgage but she is not paying towards it either. She then told him he could not do anything with that property unless she agrees as her name is on the mortgage. Can she do this as we are in a pickle as he is now paying for everything and she is making no contribution at all. His father and I will have to help out financially as he will not be able to afford to live there on his own and pay all the bills from his wages. However we do not want him to receive bad credit because of her ignorance so have said we will support him until hopefully we can reach a solution. We are not expecting her to walk away with nothing and will offer her something to leave even though the evaluation of the property has clearly identified that there is no equity in the property. Can she be forced to sell? Is there a difference because he owns 62.5%?. Can he request she come off the mortgage. The lender is happy to do a change of title and continue the mortgage as long as our son takes it out with his father and I and there is no problem at all with that because of the income my husband and I bring in. Can we approach the court to force her to sell and get this resolved? Will we be liable for all court costs and solicitor fees? How do we stand with no equity in the property and would it be seen by a judge that equity is there regardless because she had contributed to the mortgage and would need a pay out. We can afford to give her something but not a lot to walk away. If it remains as it is my husband and I are supporting our son to keep the home going and she is laughing as she still remains a part ownership as she is on the mortgage and the title of deeds. Please help we are struggling here and want to try and at least get some answers that is it legal proceedings we need to start and what success or not we may achieve. Many thanks for all your help, its very much appreciated.

    Reply

    • Justin
      April 26, 2017

      Wow! That’s a lot of information to absorb!

      It sounds as though there may be a declaration of trust between your son and his ex-girlfriend, and that should be consulted first, to see whether any of its provisions are relevant.

      Assuming the declaration of trust does not help, and only specifies the respective shares in the property (irrelevant currently, if there is no equity) then the law adopts a fairly blunt approach: either co-owner can insist the house is sold, but neither can insist the other either sells their share to the first or buys out the share of the first. In any event, if there is no equity value in the property, and neither individual can take it on alone, it seems the solution is to sell the property and each start again.

      If the ex-girlfriend will not cooperate in the sale, the remedy its to get a court order forcing the sale. The costs of getting that order should be borne by whichever party is being unreasonable, but if there is no equity value in the property you may well not get the ex-girlfriend to pay for her stubborn-ness. I’m afraid this seems to be a case where she has nothing to lose (except her own credit rating) so cannot be forced to cooperate unless you/your son are prepared to risk having to bear the cost of getting a court order.

      The only ray of hope is that, if the ex-girlfriend has no financial resources, she will find it difficult to counter the court application, so the costs of going to court could be relatively low.

      Your son should, of course, explain the position to the lender, who may be willing to suspend the mortgage instalments while your son gets an order for sale and then sells the property, but it sounds as though in any event there will be a shortfall to be made good so the mortgage debt can be repaid and your son’s credit rating protected.

      I hope this helps.

      – justin

      Reply

  25. Paul Smith
    April 26, 2017

    I own 50% of a property with my father but I do not live there. If my sister, who is to be left his 50% in his will were to move in with him, where would I stand and what would my rights be? Thanks Justin.

    Reply

    • Justin
      April 26, 2017

      Assuming there is no declaration of trust saying anything different, you and your sister will be co-owners of the property; if she is in occupation and you are not, she should pay half the market rent for the property to you. Either you or she could insist on the property being sold and the proceeds split between you.

      I hope this is clear

      Reply

  26. Raj Marya
    May 11, 2017

    My wife and I bought our house in 1986 as joint owners. In order to protect the interests of our sons we applied for and got the restriction entered as tenants in common in 2005. Now with the change in law relating to inheritance tax we believe that this restriction is no longer required. We want our house to be passed on to the surviving spouse and finally to our sons. So we want the restriction removed. Form RX3 (Application to cancel a restriction) needs to be submitted to HM Land Registry. Supporting documents required are ST5 and trust deed to change from tenants in common to joint tenants. What is the cheapest way to prepare this simple trust deed? Thanks and regards.

    Reply

    • Justin
      May 11, 2017

      The simplest and cheapest option is not to change it!

      Holding the property as tenants in common does not affect your ability to make use of the Residence Nil Rate Band for Inheritance Tax, whether you each leave your half of the house to your children or whether you leave it first to the survivor of you, then to your children.

      Holding the property as tenants in common and each leaving their half direct to the children (with a right for the survivor to remain in occupation, and to move if they want) is an effective way of “ringfencing” the half left by the first to die to protect it from being taken for long term care fees for the survivor.

      I therefore see no merit in changing to joint tenants and there is scope for protecting your children’s position if you remain tenants in common.

      I hope this helps.

      Reply

  27. Roxane Newsome
    May 14, 2017

    My partner has lived in a property for over 10 years, as a rent paying tenant of the landlord who was his mother’s husband. After she died last August he became trustee of a number of properties with shared ownership and as trustee and has replaced his mother as joint owner and now has his name on the title deeds. One of the properties is the one he currently lives in and he is now one of 3 joint owners (himself, his mother’s husband and the husband’s brother). I have a couple of questions. At the time of his mother’s death, my partner was not working and his mother’s husband (one of the joint owners) insisted he claim housing benefit. Is this fraudulent when he is part owner/trustee of the property? He is now working again albeit a low income. His mother’s husband is still insisting he pays rent. He believes that this is not in line with his mother’s wishes although this was not specified in her will and the trust. Is my partner now the landlord, owner, trustee and tenant all at once and is he legally allowed to occupy the property rent free as he believes his mother wanted regardless of the other two joint owners?

    Reply

    • Justin
      May 14, 2017

      Though your partner is a joint legal owner, that does not mean he necessarily has any beneficial interest in the property, including the right to live there rent-free. Any beneficial rights he may have will depend on the terms of the trust(s) to which the properties are subject, and that is not clear from your message.

      Accordingly, there is nothing necessarily wrong (based on the information supplied) with him being charge rent; further, if he is being charged rent, there is nothing wrong in him claiming housing benefit.

      I hope this helps, though there seem to be many aspects to this that warrant checking.

      Reply

  28. Graham Blackbouirn
    May 20, 2017

    For historic reasons my brother is tenants in common together with my elderly parents of a house in which none of them now lives, and which is let. My parents’ wills states that their estate will be divided equally between my brother and me on their death, so I would end owing 1/3 of the house.

    I have recently discovered that my brother has obtained planning permission to demolish the house and build a new, much larger, house on the site. So far as I know, he hasn’t informed my parents of this, and on his planning application (which I discovered online) his agent declared he was the sole owner. I can only guess that he is making plans for the house after my parents death. I don’t want to let my brother know I have discovered this, since my parents would also probably find out, which would cause much distress. But I would like to know whether, after my parents’ death, my brother would be entitled to demolish the house without my permission, or whether I could force a sale. In fact my preference would be to effect a deed of variation (is that the correct term?), so that my 1/3 share would go directly to my children, but I don’t know whether my brother would agree to this (I have a strained relationship with my brother, who refuses to discuss the future, even though we have joint Powers of Attorney (not yet invoked) on behalf of my parents).

    Reply

    • Justin
      May 21, 2017

      On the basis of the information given (and assumptions made), your brother is not entitled to develop the property without the consent of his co-owner(s).

      This does not stop him obtaining planning permission for the development: anyone can apply for planning permission, whether they own the land or not, though they should give the (co-)owner(s) notice of the application: it seems your brother did not do this.

      Once you become co-owner, you can insist the property is sold – or that your brother buys you out, which is probably what he plans to do, anyway.

      There is nothing to stop you assigning your (expected) one-third share of the house to your children, once you own it, but I suspect you are talking about varying your parents’ Wills so they leave half of their respective one-thirds shares direct to your children; while this would need the cooperation of the executor(s) and the affected beneficiary/ies (just you, in this scenario), there is no good reason for your brother to be obstructive, I think.

      I suspect he plans to buy you out once your parents are no longer around, but I’m not sure he has gone the best way around to do this, either from your parents’ estates’ tax position or his own – getting planning permission increases the value of the property in the hands of your parents and your brother, and therefore increases the value of your parents’ estates (and the tax payable on them) – it also increases the price he would have to pay to buy you out.

      I hope this helps. clarify any points you needed clarification on.

      – Justin

      Reply

  29. Bianca
    May 23, 2017

    Hello,

    My boyfriend and I are about to purchase a house together. I am putting in 85% of the deposit and he is putting in the remaining 15%, however we intend to split the mortgage/bills equally (50% each). Will this effect my 85% share in the property?

    Reply

    • Justin
      May 23, 2017

      In the absence of any evidence to the contrary, the law will assume you and your boyfriend are to have equal shares in the property, whatever contributions you each make.

      You should therefore get your conveyancing solicitor to draw up a “declaration of trust”, setting out what you will each be responsible for and entitled to, so as to put the questions beyond doubt.

      – Justin

      Reply

  30. Brenda
    June 6, 2017

    Hi Justin

    I have recently bought a house with my sister and her husband, they own 50% and I own 50%, we have no mortgage.
    originally my brother was part of the scheme but backed out at the last minute, but I went ahead as my sister and her husband said they hadn’t enough money to buy a property on their own. I realised the dynamics had changed and said that it may not work out. We had signed a form agreeing to be tennants in common with a trust deed,but as yet haven’t done the trust deed. We are now in a position of trying to agree what we put in the deed but I find I am no longer happy with this arrangement and would like to part company. What are my legal rights?

    Reply

    • Justin
      June 6, 2017

      From what you say, things have been done in the wrong order: you (and your sister and her husband) have put your (and their) money in and bought the property before dealing with the terms on which it was to be bought. This creates a potentially nasty mess.

      What was the property being bought for? As an investment, as a home for one or more of the owners or something else?

      Assuming it was as an investment, then have you changed your mind or have they?

      Without a declaration of trust, and subject to the above points, it is likely that you can insist on the property being sold and the proceeds split 50:50, but if you have changed your mind and there is a net loss as a result, it is likely that you could be expected to bear that loss, on the basis that you have broken the oral agreement.

      The worst situation for you would be if the property was bought as a home for your sister and her husband, as it is likely they would not be forced to sell, as that would defeat the purpose of the arrangement as envisaged originally.

      I think you urgently need independent advice, which can only be given if all the facts are made available, so I suggest you consult a property lawyer local to you as soon as possible.

      I hope this helps.

      – Justin

      Reply

  31. Royhubbarb
    June 8, 2017

    Hi Justin. Can one party of a joint tenancy severe that tenancy in favour of a tenants in common without notifying the other joint tenant?

    Reply

    • Justin
      June 8, 2017

      Roy –

      In a word, “No” – a joint tenancy can only be severed by agreement or by one owner notifying the other(s), though there have been cases where a severance has been deemed by one party acting inconsistently with the idea of a joint tenancy.

      The only safe way to sever a joint tenancy (to make it a tenancy in common) is to serve a notice of severance on the co-owner(s)

      – Justin

      Reply

  32. Rachel
    June 21, 2017

    Hi Justin,

    I am a tenant in common with my dad, I live at the property but he rents a share of the property out to cover his mortgage payment. I have a set of keys and the tenant has one. Does my father have legal right to hold a set of keys? Do I have to give him a set? I am terrified he will come and go whenever he likes.

    Reply

    • Justin
      June 22, 2017

      As a co-owner, your father is entitled to access to the property. However, it sounds as though he has in effect assigned his right of access to his tenant; put another way, that you and your father (as co-owners) have agreed that the property will be used in part exclusively by you as your home and in part exclusively by your father for his tenant. On that basis, he has no right of access to your part, and his rights of access to the other part are limited because it is tenanted.

      I hope this makes sense and helps.

      – Justin

      Reply

  33. John Roberts
    June 21, 2017

    Hello Justin – I have recently split up with my long term partner. We shared a mortgaged house. We initially entered into it as joint beneficial tenants. This has now changed to joint tenants in common. Initially I put the deposit in of 24k and two years later spent 7k on improvements. Two years later we split up. Now selling. House valued at 49k more than we paid for it. We had a verbal agreement of if we split up I would get the deposit back and the monies for improvements back and split the remaining equity. This was witnessed by a family member who helped me out with the deposit. Now she’s saying she won’t allow any monies that I’ve invested into the house and will only agree to a percentage of the deposit being paid back and half of the equity. She is completely reneging on our initial agreement. What legal rights do I have and how could I get the verbal agreement enforced? I qualify for legal aid would this be able to pay for legal help? Are you able to advise

    Reply

    • Justin
      June 22, 2017

      If you can provide convincing evidence of the oral agreement then you should be able to enforce it – but if you get Legal Aid, I believe they will want to be repaid out of the money you recover. It therefore may be better to agree to a compromise, rather than pay too much on legal fees.

      I think you need the advice of a local property lawyer, ideally, one who handles Legal Aid, though they are very rare.

      – Justin

      Reply

  34. Jason
    June 21, 2017

    Hi I own a house with my twin brother 50/50, I have moved out and he is living in the house and paying all the bills, he has paid me £20k to buy me out but I have to be attached to the mortgage until the fixed term ends next July.

    He is expecting another child which is going to make his chances of getting the mortgage with him and his girlfriend difficult.

    The mortgage has £136k left to run and he can only lend £115k with his girlfriend.

    I agreed to stay on the mortgage until next July under the circumstances they wait to have another child until then but haven’t waited. Now I can not move on and get the full amount towards a mortgage of my owe as my old mortgage takes half my income into account even though I don’t pay towards it.

    He says I carnt make him sell the house, but I am stuck as I want to move on and start a family and get my own house.
    Can you help with any advise?

    Reply

    • Justin
      June 22, 2017

      I fear you may have boxed yourself into a corner.

      It sounds as though you have agreed (in exchange for £20,000 which your brother has paid you) to allow him sole ownership and occupation of the house, but you have not been able to agree with the mortgage lender that you should be released from the mortgage. You are, therefore, unable to escape the mortgage but unable to force a sale of the house.

      The only chink of light is that part of the agreement with your brother was that you would be released from the mortgage in July 2018, but him and his girlfriend having another child means he cannot afford to comply with his part of that agreement, which probably gives you the right to treat the whole agreement as being “resiled from” by him, entitling you to treat it as non-existent. This would involve you repaying the £20,000, however. If you can do that, you are then back in the position of being able to force a sale of the property.

      However, do not try to do this without proper advice. As you have seen, you are deep into a minefield, and need legal advice (from a property lawyer local to you) to guide you out.

      Good luck!

      – Justin

      Reply

  35. Mrs B
    July 15, 2017

    I have a tenants in common mortgage with a relative. Unfortunately he has passed away and no will was left. He was only added onto this mortgage as I was unable to afford on my own. No contributions or any financial interest.
    However now that he has passed away obviously his share will go to his children. They children are happy to sign over to me but how do we go about transferring everything into my name

    Reply

    • Justin
      July 16, 2017

      On the basis of what you say, there should be no difficulty in your relative’s administrator (assuming “letters of administration” are granted for his estate) signing over the property to you alone: this is called a “transfer of equity”. However, it does mean that the mortgage lender has to agree, and the lender will only agree if satisfied that you can service the mortgage debt on your own.

      It is essential that letters of administration (the equivalent of probate in cases like this where there is no Will) are granted as, without that, nobody has authority to transfer the property to you.

      I hope this helps.

      – Justin

      Reply

  36. linda
    July 15, 2017

    Hi Justin,
    I own a property with my partner of over 20 years, as tenants in common. I am in the process of getting a Power of Attorney, financial and Welfare, for him as he has the beginnings of dementia. If he has to go into care eventually, how do I stand? We have mirror wills, leaving the property to each other and when the last one dies, is then left to family members on both sides. I am worried in case the Social Services take monies when/if he dies. He has less than £23,000 in his own bank account but I have my own account with hardly anything in it, and we have a joint account for the bills. Also, I have 2 properties, in my name which the proceeds go into the joint account for the bills on our home. Can they take into account my properties as I am his partner/companion? Can they put a charge on our property for when I die? Will he have to pay for his care or will he be exempt from paying? Can we safeguard ourselves? I am getting conflicting information.
    Thanks.

    Reply

    • Justin
      July 16, 2017

      Hi, Linda

      The first thing to note is that your property/ies and assets cannot be taken from you to pay your partner’s care fees, nor an a charge be put against your property/ies for them.

      Your partner’s share in the property can be charged with payment of his care fees, but that charge would not be enforced while you need the property as your home.

      I believe that your partner will have to pay a share of his care fees until the cash in his bank account and any investments gets below £16,000, and by that stage social services will want a charge of his share (not yours) in the house to secure further payments, but I confess I am not up to date with the thresholds and financial limits involved.

      I think you have already done what you can to safeguard your interest in the property, by owning it as tenants in common.

      I hope this helps.

      – justin

      Reply

  37. Bev
    July 21, 2017

    Hi. I have a legal divorce agreement with my ex husband that our house has to go on the market on a particular date. I haven’t paid rent- it was family home until 2 years ago. He says that he can charge me rent if I and my property are not out on that day. I have said that if this is the case then I want a legal agreement regarding the rental payments. He says we don’t need an agreement. We are tenants in common with a 50% share each. Can you advise me please?

    Reply

    • Justin
      July 24, 2017

      Bev –

      I suspect your ex-husband is partly right and partly wrong: right in that you don’t need a rental agreement and wrong (I suspect) that he can require you to pay rent.

      The court order “trumps” all the normal rules of joint ownership (and any prior agreement between the two of you). If it says you have to pay rent, then you have to pay rent; if it doesn’t, you don’t.

      You need to read through the court order to see exactly what your rights and obligations now are.

      I hope this helps.

      – Justin

      Reply

  38. Justin Holmes
    July 28, 2017

    HI Justin

    I have got 2 house’s and put down large deposits on the 2 house’s 125000 and 80000 I foolishly had my ex partner ( not married) down as joint tenants equal shares she has always verbally said infront of people she would never take a penny as knew how hard i had worked for the money I had put in I do not have a good job and have worked extremely hard to get what I have I can get bank statements to prove I paid the money and even have a text from her saying I don’t want your money could i have a case to contest her share in the properties as she will not sign them over at the moment and will not give me any figure that she will accept please help me with any advice.

    kind regards
    Justin

    Reply

    • Justin
      July 28, 2017

      Justin –

      In lawyers’ terms, you and your ex had agreed that, though you would be joint legal owners of the properties, they were to be held for your sole benefit; you have evidence (witnesses and a text to that effect – while not as good as having a formal written agreement, that is still evidence of the agreement and the courts will enforce the agreement.

      Assuming therefore that there are no family issues (eg, that neither property is a home for your ex looking after children of yours) you have a good, strong case to seek a court order requiring to transfer the properties into your sole name.

      On the basis of what you say, I do not see any reason for you to pay your ex anything for the transfers, except to cover her legal costs in relation to the transfers (which should be no more than a couple of hundred pounds: she will need to instruct a firm to act for her, that firm will need to check her ID, etc, and they will need to check the Transfers to ensure your ex is left with no residual liability for covenants or other encumbrances affecting the properties).

      I suggest you instruct solicitors of your own to write to your ex, pointing out the terms of the agreement, and inviting her to transfer ownership without being obstructive. If she refuses, and application to the court for an appropriate order should be made, along with a claim for an order that your ex pays your legal costs for having to do this.

      I hope this helps.

      – Justin

      Reply

      • Justin Holmes
        July 28, 2017

        Hi Justin

        Thank you so much for the reply so quickly would this still be the case as she is down as owning 50% and 30 % as the tenant in common?
        I have been for 2 free initial solicitors advice where I live and they said she is entitled to the share that was put down . I am also living in the 1 home and have my kids 50 -50 of the time she left and now rents .
        is there a solicitor you could put me on to that would help me as I live in Shropshire?

        kindest regards

        Justin

        Reply

  39. Mark
    August 3, 2017

    Justin,

    Very helpful site. Thank you.

    I own a rental property with no mortgage that I am about to transfer into 50:50 tenants in common with my wife for both income tax and inheritance tax purposes. We have two children. Instead of just including the two of us can we include all four of us as tenants in common with 25%? I am conscious that a transfer of 50% to my wife does not attract stamp duty or capital gains. Would this also be the case if we split four ways including the children?

    Reply

    • Justin
      August 3, 2017

      Mark –

      Yes, you can include your children. The shares do not need to be equal, but can be adjusted to suit your requirements.

      In particular, as you say, though the gift to your wife will be exempt from CGT, the gift to your children will not, so you will probably want to ensure that the value of the gift(s) to your children do not exceed the amount of your available CGT allowance for the year of the gift(s), avoiding the need for you to pay CGT on the disposal.

      One way to do this would be to follow a two-step process, giving 50% to your wife, then each of you giving 50% of your respective 50% shares (or such other amount as is appropriate), each to one child. The first step can, I suggest, be done by a simple letter to your wife, saying that from the date of the letter you hold the property on trust for you and her; the second stage would need either a Transfer of the legal title into 4 names, specifying the percentage each transferee is to have, or – if a transfer is not appropriate because (for instance) a lender’s consent is needed and not readily available – then a Declaration of Trust, recording the gift to your wife and you and your wife (ideally, also your children) signing to say you (as the legal owner) hold the property on trust for yourself, your wife and your chilkdren in specified percentages.

      It may sound complex, but it’s not really – honest!

      I hope this helps.

      – Justin

      Reply

  40. Gill Lang
    August 7, 2017

    What a great site!
    My dilemma is that my husband and I separated 5 years ago and have been going through divorce process for last year. He has recently died but we were still married.
    He had substantial debts at the time he left, and I was advised to become tenants in common to avoid the possible consequences of his insolvency. This was also good for me, as I subsequently got cancer and was able to bequeath my half of the house to someone of my choice.
    I believe he has changed his will to do the same although I’ve not seen the document yet.
    My question is, can sale be forced? Who pays the cost? I couldn’t afford to buy the other person out. Is there a time frame to be agreed if sale is forced? I am really anxious that I shall be forced to move out of my home….after 30 Years here. Grateful for your advice.

    Reply

    • Justin
      August 7, 2017

      Gill –

      I don’t think you have anything to worry about, though the explanation is a bit long-winded – sorry!

      First, the divorce proce4edings will need to be resolved in some way. As your husband has died, I don’t think the divorce court will make any order except the stop the proceedings. It is conceivable an order would be made to clarify the ownership of and rights in the property, but that order will no longer be based on divorce law, as that no longer applies.

      Instead, the law would ignore the would-be divorce aspects, deciding about the property on the basis of property law. For this, it would want to identify – and if possible implement – the agreement the joint owners had in respect of the property when they bought it. From what you say, it was clearly intended to be the family home, and on that basis it should remain as your home for as long as you need/want it.

      This does not mean you own the whole of the property, simply that it remains your home. If, following the severance of the joint tenancy, your husband made a Will leaving his share to someone other than you, that someone will own that share, but you retain ownership of that share; that ownership gives you a right of occupation (without having to pay rent), while the other owner would not have a right of occupation because, when you bought the property, you and your husband never agreed that it would be home for a third party.

      If you decide to move, it is likely you would only receive your half of the sale proceeds, with your late husband’s half going to whoever he left his share of the house to.

      It may be that your husband did not make a Will, leaving his share to a third party; if so, the fact that the divorce has not gone through means his previous Will (if any) probably still stands, and it probably leaves everything to you; if he did not make an earlier Will, you would probably inherit his estate under the rules of intestacy, depending on the values involved and what family your husband left.

      I hope the above reassures you that you cannot be forced out. The next thing you need to do is find out whether your husband did leave a Will and, if so, what it says, as it may mean an improvement for you beyond being able to stay in your home.

      – Justin

      Reply

  41. Peter
    August 7, 2017

    Hi Justin

    We have a tenancy in common between 4 owners with respect to a commercial building that was erected with the purpose to be rented out. Is there a way for the two owners who wish to rent out the building to legally force the other two who are generally acting in an obstructive way?

    Thanks

    Peter

    Reply

    • Justin
      August 8, 2017

      Peter –

      The law’s general solution to disagreements between co-owners is to enable the property to be sold so the owners can go their separate ways. This is why, in the absence of an agreement (preferably in writing) to the contrary, and co-owner can usually force the sale of a jointly-owned property.

      In your case, you seem to be saying that the intention was that the jointly-owned property was to be rented out, rather than sold. If you can prove an agreement to that effect, you have an argument against being forced to sell, though it is not an argument I could be confident of winning.

      The better solution would be to buy out the recalcitrant co-owners, if necessary by getting an order to sell and then being the best available buyer!

      I hope this helps.

      – Justin

      Reply

  42. brian lawrence
    August 23, 2017

    my wife and I are tenants in common to make sure our children get at least 50% of our house, however what happens to our joint bank accounts on one of us passing on. Will the children own half the bank account or will all the money in the account go to the surviving account holder

    Reply

    • Justin
      August 23, 2017

      Brian –

      What happens to the money in your joint bank account has nothing to do with your joint ownership of the property; rather, it depends (a) on the bank mandate for the account and (b) on your Wills.

      From the sound of it, your Wills provide that your and your wife’s half shares in the house will pass direct to your children, not to the other of you – presumably with provisions to allow the survivor to continue to use the property as their home and to avoid inheritance tax being payable when the first of you dies.

      If your bank account is such that, on the death of one of you, the account is frozen, then you can each leave your half share of the money either to the survivor of you (which would probably be appropriate) or to your children.

      However, if your bank account is such that, on the death of one of you, the other account owner has full control of the account (normally the best), then the decision is taken out of your hands: whatever your Wills say, the survivor of you will have all the money in the account.

      You should check with your bank as to what would happen when one joint account holder dies: does the survivor automatically get the money or not?

      I hope this helps.

      – Justin

      Reply

  43. Elaine
    March 6, 2018

    I own a house with a mortgage. When I first purchased it, I had put down 80K The house has substantially gone up in value by at least 120k My boyfriend wants to purchase 25% of my house, so essentially putting in 100k The valuation of my house is 400K What are his responsibilities financially towards the house? Does he also pay 25% of the mortgage, taxes, insurance, utilities and repairs/maintenance. I am the only one living there. I occassionally rent out a room. Does he get 25% of that rent?

    Reply

    • Justin
      October 11, 2018

      If he becomes a 25% owner then, in the absence of agreement to the contrary, he would be entitled to 25% of the rent. You would specificaslly need to agree with him (in a “declaration of trust” document) what your respective responsibilities will be in respect of expenses, but you will be primarily liable under the mortgage as it is in your sole name

      – Justin

      Reply

  44. Dan
    March 16, 2018

    Hi Justin,

    Would a property that was held as tenants in common with a sibling before their marriage be condisider part of their marital estate after their death?

    Thanks
    Dan

    Reply

    • Justin
      October 11, 2018

      Their share in the property would be, yes
      – Justin

      Reply

  45. Vivian
    March 23, 2018

    Hello I have a Tenancy in Common and my husband passed. There was no will or probate. Can I appoint one of our 3 children to be a second Trustee to sell the property at Transfer?

    HM Title reads “No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court”.

    Reply

    • Justin
      October 11, 2018

      In a word, “Yes” – or your conveyancing lawyer can act as the second trustee if s/he has all the facts and relevant documentation to show that your late husband’s share passed to you on his death

      – Justin

      Reply

  46. Pat C.
    April 15, 2018

    Hello Justin, I am currently in the middle of selling a home with my now ex, we both have our own realtors and lawyers, my realtor is doing more work than the exs, he is now looking to find a place to rent with his girlfriend, we are both Joint tenants in the agreement as signed by realtor lawyer, We got the house March 7 2017 I moved in April due to apartment rental agreement, since then after the split I have had to force him to sell seeing as he refused to and did try twice to get his own mortgage and he was declined based on his credit. I served him with a court order to sell the property. We are now in midst of looking for a buyer, my ex wants to keep all the monies of the sale and believes that I deserve nothing and he should get back all monies of what he paid in, I did pay all utilities of the home , we both maintained the home he paid the mortgage that was the agreement. My question here is that can he keep all monies of sale of house after the payout of the realtors, real estate layer and mortgage payback without my signature. I have requested with my lawyer that we both get separate cheques of payout seeing as we were never married. During the first few letters from my lawyer my ex has been non responsive until he got served. With kind regards Pat

    Reply

    • Justin
      October 11, 2018

      Pat –

      I’m not sure what you are asking me – or whether your home is in this country, but the fact that you have a lawyer acting for you is good. That lawyer should be able to answer any questions you have, as they will (I hope) have all the facts and be qualified in the appropriate legal jurisdiction

      – Justin

      Reply

  47. Paul
    September 5, 2018

    I’m joint owner of a dilapidated property bought when cohabiting in the property with an ex girlfriend, I left to work overseas in 2002 and she continued to live in the property until 2004 at which point she moved out and the property left empty. The mortgage has been fully paid but she contributed only about 10% of the mortgage payments and I payed the rest.

    During the time the property has been empty it has become quite dilapidated and neighbours are threatening court action, a few times over the years I have tried to buy her out of the property but she refuses to go through with the sale despite saying she doesn’t want anything to do with the property and she doesn’t ant to buy me out. Since neighbours have threatened court action I have tried to inform her that she either needs to pay half the remedial works cost or to sell her interest in the property to me but she refuses to respond to any attempts at contact and she has moved address and I don’t have her new address only her mobile phone and email contacts.

    What is possible legally for me to do to force her either to sell her interest to me or to take sole ownership? Or are there any other legal options I should look into?

    Thanks, Paul

    Reply

    • Justin
      October 11, 2018

      If your ex-girfriend will not cooperate, your only recourse is to apply to court for an order for sale – I suggest you speak to a litigation solicitor to get this under way.

      It is likely that – due to her non-cooperation – that your ex-girlfriend would be orered to pay the bulk of your legal fees.

      I hope this helps

      – Justin

      Reply

  48. Margret
    September 26, 2018

    hi Sir recently i came to an agreement of my friend selling her share of her property to me .I paid her market value in cash and did no formal paperwork , i have found a buyer and i would like to sell of the property , it is tenants in common and there are 2 others, my friends in law is not keen in th sale of the property , what is my status and how can i overcome this , i did this out of trust and impatience as i had the cash in hand , my friend is now in Australia . What advise can you offer me Sir

    Reply

    • Justin
      October 11, 2018

      Without documentation, you are in a difficult position.

      If I understand correctly, you were c co-owner with your friend of the property and she sold her share to you. If that is correct and she confirms it and grants you power of attorney to sell the property, you can sell it, but the power of attorney needs to be appropriate to the circumstances and should be prepared by a lawyer with full knowledge of all the facts.

      I hope this helps.

      – Justin

      Reply

  49. Gary fentiman
    October 11, 2018

    My father died had tenants in common with mother she has dementia she will have to go into a home at some point he left his half to me and my sister in trust my mum now lives with my sister in the will it says the trust would end when she no longer lives in the house we will sell it soon and would like to get our half of the money the solicitor says not to soon in case the council comes after it for care fees with her savings and share of the sale she would have 550000 thousand can they come after our share thanks gary

    Reply

    • Justin
      October 11, 2018

      No, your mother’s care fees cannot be charged against your share of the house
      – Justin

      Reply

  50. Andy Sutherland
    October 23, 2018

    Hi i have a joint tenancy with my partner we are not married she hasn’t made a will, unfortunately she has terminal brain cancer which has left her some what impaired can her daughters if they wanted apply to take control of her affairs and then force me into a common tenancy,this is not what she wanted also can the council take money from her share of the property if she was to go in to care.

    Reply

    • Justin
      October 24, 2018

      Andy –

      Part of this question has been covered in my earlier reply to your other comment.

      As for long term care fees: while you and your partner are joint tenants, neither of you has a share in the property – you jointly own the whole. In theory, that should make it impossible for the council to charge care fees against your partner’s “share” (because, in law, in does not exist).

      In practice, the council could get a charge against your partner’s interest, but if the joint tenancy is not severed, that interest disappears on your partner’s death, and the whole property becomes yours automatically.

      If the joint tenancy is severed, so it becomes a tenancy in common, the council’s charge would “bite” on your partner’s share.

      – Justin

      Reply

  51. Andy Sutherland
    October 23, 2018

    Hi my partner and I bought a house 6 years ago we are joint tenants she unfortunately has brain cancer and it is terminal this has left her with some difficulty with memory confusion etc ,could her daughters apply for control of her affairs and then force me into a common tenancy this taking control of half of the property this is not what she wanted as we had agreed that if she died first the property was mine and I would write a will to leave it to them on my death.

    Reply

    • Justin
      October 24, 2018

      Andy –

      If your partner’s daughters are appointed as your partner’s attorneys or deputies, they could serve on you a notice to change the joint tenancy to a tenancy in common.

      If it was agreed between you and your partner that the survivor would inherit the property and deal with it as agreed on their own death, then you can still claim against your partner’s estate for that to apply – as long as you have the evidence to prove the terms of the agreement.

      This does not, I’m afraid, take you very far, except to make it appropriate for you to seek specific, face-to-face legal advice on the subject.

      I hope this helps.

      – Justin

      Reply

  52. Andy Sutherland
    October 30, 2018

    Hi thanks for replying to my last question can I ask one more,I am in a joint tenancy my partner has terminal cancer and will require care can the local authorities count my partners part of the property as an asset as I am going to carry on living in the property as my own home, we are not married but have been together 17 years she has no other assets over 10,0000

    Reply

  53. Alex
    November 5, 2018

    Hi. I am Alexander.
    I want to ask a question.
    One of the 2 co-owners of a house in London died.
    He left a will in which he appointed the second co-owner as executor and nazachil grandson as heir to all property.
    question: does the appointed executor have the right to sell the whole house without asking for consent from the heir, and what is the procedure for his actions? thank

    Reply

    • Justin
      November 5, 2018

      The first question is: Did the co-owners own as joint tenants or as tenants in common? If as joint owners, then the surviving owner automatically becomes the sole owner of the whole property on the death of his or her joint owner, so the grandchild would get no share in the house.

      I assume, therefore, that the house was owned by the two owners as tenants in common, for the deceased owner’s share passed under his or her Will to the grandchild. The next question is: Was there a declaration of trust specifying what the two owners’ respective shares in the property were? If “Yes” then that declaration is normally conclusive; if “No” then the law normally assumes that each owned a half share – though that assumption can be challenged if there is evidence to justify a challeng.

      If the two owners were tenants in common, then the deceased owner’s share passes to the grandchild and the surviving owner is holding the property on trust for him/herself and the grandchild.

      In order to sell a property in those circumstances, the surviving owner would need to appoint a second trustee, and the obvious choice would be the grandchild, whose consent to the sale would be needed (though either party can probably force a sale in the end).

      If a different co-trustee is appointed, the grandchild’s wishes should (in theory) be taken into account, and if the property is sold then the proceeds of sale would be trust money in the hands of the sellers, who should comply with the provisions of the trust.

      I hope this helps.

      – Justin

      Reply

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