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Nicola-mod
Nicola-mod, Moderator
Category: Property Law
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Experience:  Moderator
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me and my partner are in the process of breaking up and he

Customer Question

me and my partner are in the process of breaking up and he wants to sell the house, i brought the property originally by myself and put down a deposit of 30,000, when i met him i agreed to put his name on the mortgage, am i intitled when the house is sold to recieve my initially deposit back, then any moneys left is shared between the two of us.
Submitted: 3 years ago.
Category: Property Law
Expert:  Thomas replied 3 years ago.
Hi

Did you exercise a declaration of Trust in respect of your shares in the property?

Tom
Customer: replied 3 years ago.

i dont know what a declaration of trust is and nothing was put in writing

Expert:  Thomas replied 3 years ago.
Okay.

Are there any children of the relationship?

Are you certain that that you remortgaged in to joint names and transferred the regsitered title for the property from your sole name in to your joint names?

Tom
Customer: replied 3 years ago.

no children, i remortgaged in joint names and the property is registered in both names, dosent look good ?

Expert:  Thomas replied 3 years ago.
Hi,

One last question.

Do you know if you hold your interests as "joint tenants" or "tenants in common" please?

Tom
Customer: replied 3 years ago.

unsure what that even means, i think its a joint mortgage

Expert:  Thomas replied 3 years ago.
Hi

Thanks for your patience.

You can hold a property in two ways 1) tenants in common, where you own your shares in the property separating and when one owner dies their interest passes according to their Will OR 2) joint tenants, where each parties interest is indistinguishable from the other, when one party dies that party’s interest passes to the remaining surviving joint owners. You should ask your solicitor how you presently hold the property, if you hold as joint tenants then you should consider severing this as otherwise your interest will pass to him upon death.

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 .A declaration of trust (had you executed one) would state that you hold your interests in the properties in specified percentage shares and it could also say that each person only retains their 50% interest in the property subject to equal contributions to the relevant outgoings for the property. It would also have taken account of the fact that you paid the deposit.


It is possible to claim greater than 50% of the equity in the property by litigating under the Trusts of Land and Appointment of Trustees Act if it can be shown that you intended to keep your finances separate and it would be inequitable for a 50% interest to be enforce. If you held your interests as tenants in common your claim would be stronger at the initial stages. You can check by downloading a copy of the register for the property from the Land Registry by paying a £4.00 fee:-
http://www.landregistry.gov.uk/wps/portal/Property_Search

Look at the proprietorship register of the title you have downloaded from the Land Registry (where the proprietors of the property are listed). If the following entry is immediately below the named registered proprietors then the interests are held as tenants in common:-

" 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"

If there is no such entry then the property is held as joint tenants.

You have to be quite careful about how you deal with this. I would recommend a consultation with a local property litigation solicitor after downloading the registered title. Ultimately, depending on the facts of the case you may have a decent chance of claiming more the deposit at Court but legal fees can be expensive and there is no legal aid for this. However, if your partner is amenable to you getting the deposit then an agreed percentage split after that then you can attempt to remortgage in your sole name.

If you cannot remortgage then it would be up to him to apply to Court for an order for sale. These application for orders for sale are usually successful where there is mortgage liability I’m afraid.
.



Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Expert:  Thomas replied 3 years ago.



Is there any further information you require?

I just want to ensure that you are satisfied, so please let me know if you have any further queries on your position. Please remember to RATE my answer, if you are satisfied.

Kind regards,


Tom


Expert:  Nicola-mod replied 3 years ago.
Hello,

Just a quick reminder, there is an unrated answer waiting for you here from the Professional.

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Thank you,
Nicola

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