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tdlawyer
tdlawyer, Lawyer
Category: Family Law
Satisfied Customers: 1096
Experience:  Lawyer with 9 years experience of family law issues.
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Hi, my son owns a 50% share in a flat that he previously occupied

Customer Question

Hi, my son owns a 50% share in a flat that he previously occupied with his ex partner.
For sometime they rented the place out but for the last 18 months he has lived in it himself with his new partner and baby.
With property prices booming the flat has gone from negative to positive equity and now his ex partner wants to sell the flat so she can have 50% of the equity.
Although he is not opposed to this idea, he does have a couple of questions;

1. As he has been paying the Mortgage for the last 18 months, would his ex partner still be entitled to 50% of the equity, or would this be reduced? They are both named on the Mortgage.

2. At the moment, my son is considering buying her out and remaining in the flat. If she wanted to sell up completely and didnt want to consider the buy out option from him could she force him to do this?

3. Plus, what oblgation is he under to do anything right now. If we wanted to wait for another year before selling the flat would he be allowed in law to do this?

Thanks

David Cairns
Submitted: 3 years ago.
Category: Family Law
Expert:  tdlawyer replied 3 years ago.

tdlawyer :

Hello, welcome to the website. My name isXXXXX can assist you with this.

tdlawyer :

I can answer your questions, but I need a little more info.

tdlawyer :

Did they have any agreement about who would get what if the broke up and/or sold the property?

tdlawyer :

This is both at the point of initial purchase and when they broke up and she moved out?

Customer:

No they didnt. The split up their personal items and then rented out the property to cover the Mortgage as it was in negitive equity. But verbally agreed at some stage when the flat was in positive equity they would either sell it or one of them would buy the other out, depending on the circumstances at the time.

Customer:

When they both moved out of the flat.

tdlawyer :

Okay. Do you know whether they were joint tenants or tenants in common when they bought the property? I'm guessing, if they were not married, it might have been the latter, but do you know?

Customer:

Not sure about that. But they didnt get married

tdlawyer :

Okay. When they bought the property, they would have had to tick a box on the TR1 form with their solicitor. This would determine whether they're joint tenants or tenants in common. Basically, with joint tenants, it doesn't matter how much each person puts in or who pays the mortgage, they both get 50:50. That's not necessarily the case with tenants in common, which is how people in shorter or non-married relationships tend to hold property.

tdlawyer :

In tenancy in common situations, the court can have regard to the amount of contributions made in working out who gets what when the property is sold, to ensure a fair distribution.

Customer:

Ok, so I assume the only way we can find out is to contact the Mortgage provider. If it is Tennants In Common, does this have to be settled by a court or is there a standard policy that a solicitor could ensure is applied?

tdlawyer :

If there is a dispute, unless you can agree something, it has to go to court. However, usually, parties can see and understand how a court is likely to deal with it, and this means it shouldn't be necessary to go to court.

tdlawyer :

You can find out whether JT or TIC by looking at the land registry entry for the property.

tdlawyer :

If it's tenants in common, there will be s form of wording on the title that makes this clear.

tdlawyer :

This is the wording you would see: “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.”

tdlawyer :

You might want to look at this too: http://www.landregistry.gov.uk/public/guides/public-guide-18

tdlawyer :

It's a good land registry guide to the two types of ownership.

Customer:

Would we just have to go onto the Land registry website and type in the address?

tdlawyer :

Almost as simple as that, yes! It'll cost you £2 too, I think.

Customer:

Ok thanks for that, how about my other questions, how does he stand with those?

tdlawyer :

Yes, okay. Ideally, one should buy the other out, or the property sold, to draw a line under it. If she applied to the court, the court is likely to order the sale of the property in most cases.

tdlawyer :

This could happen immediately and there is no right to hold on to it for a year or so.

Customer:

Ok, my son is keen to get things done now as well, but at the moment would probably want to buy out her half of the flat as they have decorated and cleaned up the flat considerably after it had been rented out for two years by two different tennants.

Customer:

Could she force him to sell rather than a buy out? As Ive got the feeling she may think she may get more money out of it by putting it on the market.

tdlawyer :

She can't force him to sell if he buys her out at the market value.

Customer:

How would that market value be determined. His new Mortgage provider or Estate Agents valuation?

tdlawyer :

The market value needs to be determined by an estate agent/surveyor that is experienced in doing this.

tdlawyer :

A court would want to see such a valuation if a forced sale was contemplated.

Customer:

The only problem is that Estate Agents valuation can vary considerably, so would a Mortgage Providers survey be the best way to go, as we are considering going to a different Mortgage provider and efectively remortgageing the flat in his name. (excuse spelling!!)

tdlawyer :

A mortgage providers survey is a useful start, yes.

tdlawyer :

Then it becomes about negotiation really, but ultimately, if no agreement is reached, the court has to make its own judgment about valuations.

Customer:

So we would be within our rights to use a Mortgage providers valuation to determine what value her half of the equity is less costs

tdlawyer :

It's a starting point - it's not determinative.

tdlawyer :

As you recognise, valuers have different views sometimes.

Customer:

So she could demand we take a valuation from an Estate Agent which could be higher and therefore more beneficial to her?

tdlawyer :

That;s not to say her valuation would be right either - people might not be willing to pay the price. This is why it has to be a process of negotiation really.

tdlawyer :

Otherwise, a judge has to take his own view on what is a realistic valuation. Ultimately, if you can't agree though, it means a court might have to order the sale of the property and see what sum might be obtained for it. Nothing stops your son putting in a matching offer to the highest value offer received from third parties.

Customer:

Ok, so best to come to some agreement with several valuations on the table then, or it will probably end up with a court deciding I assume?

tdlawyer :

Correct, yes.

Customer:

Sorry, typing the same time as you were...

Customer:

Thanks for your help. Im a lot clearer on what he needs to do now

tdlawyer :

:) Thank you! XXXXX check that you're happy with the service today please?

Customer:

Yes very

tdlawyer, Lawyer
Category: Family Law
Satisfied Customers: 1096
Experience: Lawyer with 9 years experience of family law issues.
tdlawyer and other Family Law Specialists are ready to help you
Expert:  Clare replied 3 years ago.
HiThe simple fact is that it does not matter whether they are Beneficial Joint Tenants or Tenants in Common - unless there was an agreement that one of them would have a larger share then they starting point for the division of the equity is 50/50Since he has been living in the property for the last 18 months and his ex has not then he will not get any credit for those payments - paying her half will be treated as his have paid Occupational rent for the use of her shareIf he wishes to buy her out he should obtain three ESTATE AGENTS valuations of the property and go with the middle one. The mortgage providers valuation is not the guide that the court would use. An alternative option is to ask his ex to provide the names of three estate agents and for him to pick one (or vice versa) with the agreement that they will both abide by the valuation.If she does not agree to being bought out at the market value she will find the court less than sympathetic to any application she makes for a sale of the house and the court would point out to her that she may be responsible for ALL the costs of sale if she does not agree.I am afraid that if his ex does wish to force the matter she can make the application to the court immediately and your son will not be granted any extra timeClare

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