Cohabitation property disputes – what to do when cracks appear
Whether you are a cohabiting couple or sharing a home with friends or family, property disputes can develop when a relationship breaks down or one party wants to sell up when the other doesn’t.
Unfair though it may seem, you do not have the same legal protection as married couples or civil partners and no specific rights when it comes to property, pensions and savings.
Even having contributed to the mortgage for years does not necessarily mean you have any legal claim on the property if the person whose name is on the title deeds asks you to leave.
And problems can arise despite the property being registered in joint names, usually because one person refuses to move out of the property or agree to its sale.
No wonder, with your home at stake, it can feel like an emotional minefield particularly when there are also children involved.
Seeking early advice from Wards Solicitors’ Cohabitation Disputes team will give you the best chance of resolving your dispute as quickly and cost-effectively as possible.
Going to court is rare and we always aim to settle disputes using a process of negotiation or mediation.
If you are in a couple, we can then draw up a separation agreement that everyone involved is happy with.
Or if you bought a property with friends or family, we can draw up a financial settlement agreement to formalise and implement how the property is to be divided.
Here, we talk you through how we can help with a few commonly encountered problems.
Am I entitled to stay on in the house with our children now we have separated?
Sadly, there is no automatic right for a parent to postpone the sale of a property in order to continue living there until the youngest child reaches the age of 18.
It is possible to apply to court under Schedule 1 of the Children Act 1989 but success is by no means a given.
Each case turns on its own facts with the courts looking at factors including the best interests of the children, the income and resources of both parents, how the mortgage is to be maintained and day to day living funded and how the other parent’s housing needs will be met.
Again, these cases in terms of court proceedings can be very costly so early legal advice to carefully consider all options is highly advisable.
The property I shared with my ex-partner is in his sole name but I have helped pay the mortgage for years. Am I entitled to anything?
Firstly, you must demonstrate you have what’s known as a beneficial interest in the property.
You can build your case in a number of ways. However, one example may be that you would need to evidence your direct contributions to mortgage payments or the deposit.
We would also need to look at the reason for these payments. For example, did you make them because of promises made to you about your future in the property? Was the house treated as a shared home?
This may enable the court to agree that you do indeed have an interest in the property.
The next stage is to determine what the size of your interest is – this could be 50 per cent, possibly more and possibly less. If you and your ex-partner did not make a prior agreement, the court will apportion each of you the shares it considers fair and reasonable considering the circumstances of the case.
Can I force the sale of the property I own jointly with my sister and her husband?
You are entitled to apply for an order of sale under the Trusts of Land and Appointment of Trustees Act (TOLATA) 1996 but before you do so, you must set out your case in detail giving the other person, known as the defendant, the chance to respond.
The court, which has the discretion to order a sale, will take a number of factors into consideration including the interests of any creditors, the welfare of any children living in the property and the intentions of those who created the trust in the first place.
It is important to try to resolve a dispute like this one away from the court room as judges can take a dim view of those who have not tried to do so. Contact us for more information on how best to proceed as this can be a costly route.
Careful early planning
There are early legal safeguards you can put in place to help avoid a dispute if you break up later .
These include Cohabitation Agreements, which reflect arrangements made between couples as well as family members and friends, and Declaration of Trusts which confirm the proportions in which two or more individuals own a property.
Why use Wards?
Our specialist dispute resolution lawyers have years of experience in all types of residential property and cohabitation disputes.
Our cohabitation expert, Partner Lucia Mills, is commended by the independent Legal 500 Guide for going ‘beyond the call of duty’ for her clients.
Get in touch
For further information or to discuss a cohabitation issue, please get in touch with Lucia Mills on 0117 929 2811 or email her directly at email@example.com.
You can click here to see our specialist Residential Property Disputes team.
Or to find the Wards Solicitors’ office nearest to you, please click here.