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Thomas
Thomas, Solicitor
Category: Family Law
Satisfied Customers: 7509
Experience:  UK solicitor
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Hi, My ex & I split up in 2004. We have a property in joint

Resolved Question:

Hi, My ex & I split up in 2004. We have a property in joint names, I have not been able to gain access to the property since leaving, tried many times to contact, locks changed etc. I have now discovered that the house has been put up for sale and an offer accepted. I have been in touch with the solicitors dealing with this and they want me to negotiate with my ex before going any further. Luckily they cannot complete any sale without my consent. I really need to find out what I am entitled too before making any agreements. I lived in the property for 18 years, paid all the bills, utilities etc. Thankyou
Submitted: 2 years ago.
Category: Family Law
Expert:  Thomas replied 2 years ago.
Hi

Thanks for your question.

Are there any children of the relationship?

Kind regards


Tom
Customer: replied 2 years ago.

Hi Tom


No kids, never married either.


 


The property was purchased 1986 & I lived there until 2004. The solicitors dealing with the sale want me to negotiate a settlement with my ex directly. I would like to know where I stand. The property is in joint names. Thanks

Expert:  Thomas replied 2 years ago.
Hi

Thanks.

Have you at any point executed a declaration of trust with your partner declaring your respective percentage interest in the equity of the property?


If not, is there some other form of agreement governing the percentage split of the equity?

Tom
Customer: replied 2 years ago.

No, communications broke down a long time ago, I have never been able to back into the property, locks were changed as soon as I left. No answer at the door etc. I don't think that he has lived there for at least 8 years, its been rented out for the last 4 years so I have been informed. I have never been told the thruth

Expert:  Thomas replied 2 years ago.

Hi

Thank you for your question and patience, I’m Tom and I’ll try to help you.

First of all, if you and you partner presently hold the house jointly (as joint tenants, rather than as tenants in common) then each person's share would pass to the other upon death regardless of any directon made in any Will. If this is not what you want then you should sever the joint tenancy by using Form SEV from the Land Registry (you will have to send it to them and if you have any questions about completing the form you should call their customer service number - they are very helpful):-
http://www1.landregistry.gov.uk/publications/?pubtype=49


You will then hold you interests as tenants in common, meaning that your respective shares will pass according to their wills or under the intestacy rules. Your partner need not sign the form provided you follow the instructions.

In the absence of any express agreement there is presumption that the proceeds of sale are split equally. Unless there is a declaration of trust (for which you must hold your property as tenants in common) then there is a presumption that each party retains a 50% interest in the equity in the property.

If one person has maintained the payment of the mortgage for a considerable time and/or contributed more when purchasing the property initially and the other party has not contributed to the household expenses at all then the person can attempt seek to claim a greater interest by litigating. However, litigation in this area is very expensive (there is no legal aid) and can take a long time if the other party disputes This would be litigation under the Trusts of Land & Appointment of Trustees Act.


Therefore, the presumption would be that you are entitled to a 50% split each. If she wants more of the equity and you dispute it then she must apply to court and litigate, which she may not do because of the prohibitive costs.

If she attempts to negotiate more than 50% then you might argue that you have not received any of the rental income from the time the property was rented and so would be inclined to argue for a greater percentage yourself if the 50:50 split is not agreed.

The sale cannot proceed unless you agree because you are required to sign the Contract and Transfer, so you have some bargaining power too.


My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.


Kind regards,


Tom

Customer: replied 2 years ago.

Thankyou, one last question if I may.


 


Will I be paying tax on any monies received through the sale as I have not been living at the property but also not been getting any of the rental income either

Expert:  Thomas replied 2 years ago.
Hi,

If you do not live at the property then you won't be able to claim it as your "principal private residence" for capital gains tax purposes.

This means that you will have to calculate any capital gain made since you bought the property and account for any CGT tax due.

Information here:
http://www.hmrc.gov.uk/cgt/property/

Kind regards,


Tom
Thomas, Solicitor
Category: Family Law
Satisfied Customers: 7509
Experience: UK solicitor
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