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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I bought a house with my fiancé and we moved in in February.

Resolved Question:

I bought a house with my fiancé and we moved in in February. The house is only in his name as I have a terrible credit rating but I put in £26k and he put in £8k. The solicitors had us as joint clients and the deposits are documented and agreed by email.

He left on 23rd April to move in with someone else. I am now living here with my 14 year old son. There is no formal tenancy agreement in place but I have paid him for this month and will pay him for next month as agreed. 

He wants to sell but we can't agree at the moment so he has threatened to change the locks or to move back in. The moving back in is probably an empty threat as he is with someone else now.

What rights do I have as neither legal owner nor tenant. Can he evict me? Does the fact that I have £26k deposit in the property offer me any protection?

I have a declaration of trust 'on ice' at the moment as he is still disputing the values, not of the deposit, but how we split it if the house sells at a loss. He will be doing an occupier agreement and we will need to sign at the same time as neither of us will sign first.

I am refusing to allow people to view the property via the estate agent until he signs the declaration of trust as my money is on the line here. Can I do that?

What are my legal rights at this point regarding the property?

Thanks
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 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 clarify that you bought the property in or around February please - I note that was when you moved in?

Joshua :

You mention you live with your son. Is that son from a previous relationship or is the partner you refer to his father?

Joshua :

What was agreed if anything at the time you purchased the property as to how you would share any proceeds of sale? Or was this deferred to a later time in terms of making a decision? Has the property increased in value to any significant extent since the time you purchased it would you estimate?

Joshua :

Finally are you willing for him to move back in to live in the property whilst you resolve matters or is this not something you can consider?

Customer:

Hi Joshua, we bought the property on 14th February. It is my son not his.

Customer:

We didn't really discuss the proceeds as I thought it was long term and we'd be together for ever so when we sold we would buy something else. The house price was £215 we paid £208. It is now valued at £225.

Customer:

No he couldn't move back in and I don't think he would really want to. His new woman certainly wouldn't have that anyway

Joshua :

Thanks. If your ex is the sole owner of the property the starting point is that he can arrange to sell the property and could serve you notice to leave. However there are a number of steps you can consider to securing your position. You could apply to register a beneficial interest in the property given your investment in the same. Although you are not a legal owner, you are nevertheless an equitable owner and own from what you say a larger percentage then your partner. You could, though given your status as an equitable owner it should be unnecessary, apply for an occupation order which is an order by a court that you can remain in the property for a period - normally this would be used where you lived in a partners house that they owned where you have no financial interest in the same.

Joshua :

There is no presumption that the money you provided to your partner was a gift. It will either be a loan or an investment depending upon the evidence each of you can adduce and your own statements. The difference between the two would be that in the event it was a loan, then you would be entitled to the capital back if you sell, where as if it was an investment, you would be entitled to the net proceeds of the relevant percentage of the property you own based on its purchase price which if the property has increased in value, should result in you obtaining a little more than you put in.

Joshua :

If you are not willing for him to live in the property if he wishes, then you will be liable to pay an occupation rent to him which is usually equivalent to the interest element on the mortgage but he could seek a market rent pro rataed to his share of the property potentially

Joshua :

The critical initial thing to consider is registering your beneficial interest on the title to prevent it being sold from under your feet. You may wish to appoint a solicitor to assist you with this but you can do it yourself.

Customer:

Hi Joshua I'm not sure if you got the last answer .... I've tried to move from mobile to laptop to make it easier to type

Joshua :

Sorry I didn't could you repost?

Customer:

We have agreed i would pay 75% of the mortgage which is £733 to remain here.

Customer:

The chat function isn't working on the laptop and it tries to post it as another question.

Customer:

Bear with me while I retype it

Customer:

Ok if he does serve notice to leave how much notice can he server? Does the fact that I have a minor living with me change anything?

Customer:

How do I apply to register a beneficial interest in the property? I do have a larger share in the property currently.

Customer:

It was neither a loan nor a gift as I believed we were together so it was an investment for our future. However the Halifax insisted I write an email to them saying it was a gift and I wouldn't ask for it back.

Customer:

They did this the day before exchange so I was under duress and the solicitor knew it was my money and had tried everything he could to get the Halifax to accept a charge on the property etc but they refused

Customer:

I have email correspondence between me and my ex agreeing the amounts of £26k and £8k for the declaration of trust (which he hasn't signed) and he also told the estate agents that he had to give me back £26k.

Customer:

There are bank statements to prove this and also the money laundering document for the solicitors who handled the sale states this. The end.

Joshua :

You can apply for a beneficial interest to be registered by using form RX1. If you bear with me I will fetch a link...

Joshua :

http://www.landregistry.gov.uk/_media/downloads/forms/RX1.pdf

Customer:

Does this mean that he can't force me out or sell the house without me agreeing?

Joshua :

Quite so. Once you have registered a restriction this will prevent a sale without your consent unless he obtains a court order which is what you would need to consider if you are unable to agree on how to split the proceeds of sale. You have a right to continue to live in the property subject to payment of any occupational rent agreed. Either of you can require that the other either buys out their share at market rate or that the property is sold but a court order would be required if you cannot agree.

Customer:

Apparently he is going to sign the declaration of trust but I need to ensure he can't sell the house from under me. Do I still need the beneficial interest registered?

Joshua :

There is a fee of £40 to register the restriction

Joshua :

Registration of the restriction will prevent him from selling without your consent because you will need to sign a consent to permit the sale once the restriction is registered.

Customer:

Do I not have to sign an occupier agreement anyway before he can exchange?

Joshua :

It is true that even without a restriction being registered he is likely to run into difficulties because most prudent buyers would require you to sign as an adult occupier to confirm you will acknowledge but it does not guarantee that he can't as a cash buyer could simply buy the property and serve notice on you to move out. This is not likely but it is a possibility. The restriction prevents this.

Customer:

I guess it also prevents him selling at a price which means we don't recover our money .... as I can refuse the offer?

Joshua :

Quite so. It means you either have to agree to any sale or he needs to get a court order which he won't be able to get without a full hearing which would set the price, split and timing etc.

Customer:

Thank you. That has put my mind at rest. So just to clarify, with a signed Declaration of Trust and a beneficial interest registered I am protected and my money is safe. Plus providing I pay the agreed amount of £733 a month he cannot make me leave. Is that all correct?

Joshua :

Once the restriction is registered you will have a good measure of control. From there hopefully you will be able to reach an agreement about how to proceed. Hopefully you will be able to do so without litigation as you do not seem to be a gulf apart - i.e. he seems to acknowledge that you are entitled to at least your capital back. From that starting point compromise should be able to be found and having registered the restriction you will give yourself some breathing room to arrange options for yourself going forward

Joshua :

You do not need the signed declaration of trust to register a restriction - you only need evidence you contributed towards the purchase price. However a signed DoT would be helpful. Having registered a restriction the property cannot be sold without your consent without a court order.

Joshua :

(or by the lender if it repossessed if you failed to pay the mortgage).

Customer:

He works for a bank so the mortgage would be paid as default means he would lose his credit rating and his job.

Joshua :

I only mention it for the sake of completeness.

Joshua :

Is there anything above I can clarify for you?

Customer:

Thank you. I think everything is fairly clear. But can you just confirm that he cannot legally make me leave the property providing I keep paying "rent"

Customer:

Ie cannot change the locks etc

Joshua :

Not in the short term. You do not have a right to simply refuse to sell or buy out his share. It is not possible to effectively hold his equity hostage. He has the right to require that you either buy out his share (which of course would involve getting a mortgage in your name) or if you cannot, that the property is sold at an agreed price and the proceeds divided as agreed. If you cannot agree any of these points he has the option to apply to the court for an order that the property is sold under the Trusts of Land and Appointment of Trustees Act where the court will decide any aspects you cannot agree.

Joshua :

He cannot however kick you out or change the locks without the above court order which would take several months to obtain and ideally would be avoided by way of agreement between you on the above.

Customer:

Thank you. I wouldn't refuse to sell providing he doesn't accept a silly offer just to get rid of it. I want to be out of here really but with all my money

Customer:

Thanks for your help. I will sort out the beneficial interest this evening. Hopefully will be alltied up by the end of the week.

Joshua :

Quite so - he cannot accept silly prices. You either have to agree or it is determined by a court on the advice of a surveyor's valuation. The court will look to ensure that both parties interests are balance in that a fair price is achieved. However as above ideally litigation would be avoided as there seems to be a basis to achieve a negotiated compromise between you based on what you say

Joshua :

A pleasure. If I can assist any further as the situation develops please do no hesitate to let me know.If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Customer:

Thank you Joshua

Joshua :

Best wishes

Customer:

I am very happy with the service provided and will rate you as excellent!

Joshua :

That is most kind

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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