Joint Ownership of a Property: What Happens After a Breakup, Separation or Divorce?
Buying a property with a partner, spouse, friend or family member is a significant commitment. At the time, it is easy to assume that everyone’s plans will remain the same. Unfortunately, circumstances can change.
A relationship may break down, one owner may want to sell, or there may be a disagreement about each person’s financial interest in the property. These disputes can be stressful, particularly where the property is also someone’s home.
If you jointly own a property and cannot agree what should happen next, it is important to understand your legal position early. Getting advice at the right time can help you avoid unnecessary delay, cost and conflict.
Can One Joint Owner Force the Sale of a Property?
In most cases, all legal owners need to agree before a jointly owned property can be sold. Problems can arise if one person wants to sell and the other refuses.
This can happen where:
- A separating couple cannot agree what should happen to the family home
- Former partners disagree about ownership shares
- One co-owner wants to release their share of the property
- Friends or family members who bought together now have different plans
- One owner wants to buy the other out, but terms cannot be agreed
Where possible, it is usually best to try to resolve matters through discussion, negotiation or mediation. However, if agreement cannot be reached, it may be possible to apply to the Court for an order for sale.
Joint Tenants vs Tenants in Common
Before looking at what options are available, it is helpful to understand how the property is legally owned.
If you own a property as joint tenants, you both own the whole property together rather than having a specific share. If one owner dies, their interest in the property usually passes automatically to the surviving owner, regardless of what their Will says.
If you own a property as tenants in common, each owner has a defined share. These shares may be equal or unequal. For example, one person may own 70% and the other 30%, depending on what was agreed or recorded at the time of purchase.
This distinction can make a significant difference if a relationship breaks down, if one owner wants to sell, or if there is a dispute about how the sale proceeds should be divided. If you are unsure how your property is owned, a solicitor can help you check the legal title and any supporting documents.
What Is a TOLATA Claim?
TOLATA stands for the Trusts of Land and Appointment of Trustees Act 1996. It provides the legal framework for resolving many disputes involving jointly owned property.
A TOLATA claim may be used where co-owners cannot agree on issues such as:
- Whether the property should be sold
- Who owns what share of the property
- How the proceeds of sale should be divided
- Whether one owner can buy out the other
- Whether one person should remain living in the property for a period of time
TOLATA claims are often used by former partners who were not married or in a civil partnership, but they can also apply to disputes between family members, friends or other co-owners.
If you are involved in a jointly owned property dispute, our Residential Property Disputes team can advise you on your options and help protect your interests.
What Will the Court Consider?
When deciding whether to make an order for sale, or how ownership should be dealt with, the Court will look carefully at the circumstances of the case.
Relevant factors may include:
- The intentions of the parties when the property was purchased
- Whether there is a Declaration of Trust or other written agreement
- How the property is legally owned
- What each person contributed towards the deposit, mortgage or improvements
- The purpose for which the property was bought
- Whether any children are living at the property
- Any mortgage or secured borrowing affecting the property
Every case is different. The Court will consider the available evidence before deciding what outcome is appropriate.
What Happens During a TOLATA Claim?
Every TOLATA dispute is different, but most begin with a review of the ownership documents and the evidence available. Your solicitor will usually consider the Land Registry title, mortgage documents, financial records and any written agreements before advising you on the strength of your position.
In many cases, the first step will be to try to resolve the dispute through negotiation or mediation. This can be quicker, less stressful and more cost-effective than Court proceedings.
If agreement cannot be reached, an application may need to be made to the Court. The Court may then be asked to decide whether the property should be sold, whether one owner should buy out the other, or how the proceeds should be divided.
Useful evidence may include:
- Title deeds and Land Registry documents
- Mortgage records and bank statements
- Evidence of deposit payments or mortgage contributions
- Records of payments for renovations or improvements
- Any Declaration of Trust or written agreement
- Emails, messages or other correspondence showing what the parties intended
Some disputes can be resolved within a few months, particularly where the evidence is clear and both parties are willing to negotiate. More complex cases, especially where ownership shares are disputed, may take longer.
Common outcomes include:
- The property being sold and the proceeds divided
- One owner buying out the other
- Agreement being reached through negotiation or mediation
- The Court deciding each person’s beneficial interest in the property
Seeking advice early can help you understand the likely options and avoid taking steps that may make the dispute more difficult to resolve.
Jointly Owned Property Following Separation or Divorce
Property disputes frequently arise after a relationship breaks down.
Where a married couple or civil partners are separating, property matters may form part of wider financial arrangements during divorce or dissolution proceedings. Our Divorce and Separation Solicitors can advise on the options available and help you work towards a practical resolution.
For unmarried couples, the legal position can be very different. Contrary to popular belief, there is no such thing as a “common law marriage” in England and Wales. Living together does not automatically give someone the same financial rights as a spouse or civil partner.
In these cases, ownership rights will often depend on legal ownership, financial contributions, any written agreements and the evidence available.
How Can Future Property Disputes Be Avoided?
Many disputes can be avoided by putting clear legal arrangements in place at the time of purchase.
This may include documenting:
- How much each person contributed towards the deposit
- Who is responsible for mortgage payments and other property costs
- Whether ownership shares are equal or unequal
- What should happen if one person wants to sell
- How sale proceeds should be divided in the future
A Declaration of Trust can be used to record ownership shares and financial contributions. Couples purchasing a property together may also wish to consider a Cohabitation Agreement, which can help clarify wider financial arrangements and reduce the risk of future disputes.
How Bennett Griffin Can Help
Whether you are seeking an order for sale, disputing ownership shares, or trying to resolve a disagreement with a co-owner, our experienced solicitors can help.
Our Residential Property Disputes team advises clients across West Sussex and beyond on TOLATA claims, joint ownership disputes and related legal issues.
Where a property dispute arises following the breakdown of a relationship, we work closely with colleagues in our Family Law team to provide practical, joined-up advice tailored to your circumstances.
To discuss your situation, please contact Bennett Griffin today.
Call our Worthing office on 01903 229999 or our Chichester office on 01243 781000.
Alternatively, email info@bennett-griffin.co.uk and a member of our team will be happy to help.