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Joshua
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi my partner and myself co-owned the flat. My share is 90%

Customer Question

Hi my partner and myself co-owned the flat. My share is 90% his share is 10%
I want to sell the flat but he doesn't agree to sell it.
He became alcoholic and unemployed 3 month ago. He stopped paying the mortgage since then. I need to end this relationship and stop looking after him. I want to process this peacefully avoiding going to the court if possible.
However he doesn't stop drinking and I can't discuss with him properly.
How can I proceed? What would you recommend? I prefer meeting the mediation and the cost as well but what would I do if he doesn't keep the written up agreement?
If he doesn't court (due to drinking) what would happen?
Submitted: 2 years ago.
Category: Family Law
Expert:  Joshua replied 2 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I confirm with you if you are married or if there are any children involved please?

Joshua :

With your permission - in the event you pick this up tonight - I will revert to you in the morning. I look forward to hearing from you.

JACUSTOMER-ar2ic12w- : Not married and no children.
Joshua :

Many thanks. If your partner is a joint owner of your property and you did not enter in to a declaration of trust or have any other evidence to show how you agreed to own the property, then the recent decision in the case of Kernott makes it quite clear the starting point for ownership is 50% / 50% in terms of shares in the property. However if you have a formal declaration of trust to support a 90/10 split you refer to this will be binding. If you have not entered into a formal declartion of trust to evidence this split, then as above the starting point for joint ownership is 50/50 but this can be shifted if you can show by reference to financial evidence that you have contributed more to the property and that there was no intention on your part to make a gift of such contributions to your partner or vice versa.

Joshua :

Your partner continues to be liable for payment of any remaining mortgage with you. If they are no longer living at the property but you are (though either of you have a right to as a joint owner) they also have a right to be paid something called occupational rent to compensate them for your exclusive enjoyment of the property. The converse is also true if they are in occupation and you not. There is no hard and fast rule as to what occupational rent should be in terms of money but courts generally rule that it should be equivalent to the interest element repayable against the mortgage.

Joshua :

If you do not have a formal decalaration of trust you will need to show evidence as to why you are entitled to more than 50% as discussed above. As above the 50/50 presumption can be shifted as above however the burden is upon you to show evidence as to why it should be shifted in your favour by reference to financial evidence. If this is the case you would do well to consider reading the case of Stack v Dowden which would be a useful read as well as the very recent case of Kernott. An example of evidence that may be persuasive is that you did not share your finances and kept them separate from each other each other. Any written agreements direct or indirect setting out how you would agree to share assets and liabilities in relation to the house or other matters could be of relevant. Any evidence that demonstrates on the balance of probability that you had no intention to make a gift of your greater contributions to your partner could be helpful.

Joshua :

If your partner is resolute in refusing to cooperate in any sale notwithstanding the above then ultimately after having attempted negotiation or even mediation, your ultimate recourse is the county court. This is also the case if you are unable to agree as to how to divide the property between you. In these circumstances you or they have a a right to apply to the courts for an order for sale under the Trusts of Land and Appointment of Trustees Act and/or to determine your respective shares in the property. The courts have the power to impose a settlement based on what they believe is fair based on the evidence you can both bring.

Joshua :

Ideally you would be able to agree a division amicably or through mediation. If you cannot each of you would need to be mindful of legal costs if the matter goes to court. However if possible at all you would avoid a court application because court fees for a reasonably straightforward TLATA claim can be anything from £750-1750 and can be more if litigation is extensive though if you can show that the application was required due to the other party's unreasonable behaviour you can seek costs to be awarded against him. A typical TLATA application might look something like this:

Joshua :

You may apply to the court for: 1. A Declaration that the Property and the net proceeds of sale thereof belong to the Claimant and Defendant in shares ??:?? or such other shares as the Court may decide. 3. An Order that the Property be sold with the Claimant to have conduct of the sale and that the Defendant do join with and co-operate with the Claimant and take all steps and execute all documents necessary to effect the sale of the Property failing which a District Judge of this Court will have the ability to sign such documentation in place of the Defendant. 5. Such provision as the Court shall see fit in relation to occupational rent. 6. Such further or other relief as the Court may deem appropriate.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

JACUSTOMER-ar2ic12w- : How come 50//50 ? Deposit is paid 10/90 and we are living in the flat for 3 yrs. and he is not paying the mortgage for a few months. The share split is on the legal doc.although I am not sure what you mean by declaration of trust...
Joshua :

Thanks for your response - my apologies for the delay in reverting to you. COuld you confirm what the legal document is you refer to which details the split. Do you know what it is - e.g. is it a transfer deed (TR1) or some form of deed setting out the split which is signed by both of you?

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