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Thomas
Thomas, Solicitor
Category: Property Law
Satisfied Customers: 7602
Experience:  UK solicitor holding an England and Wales practising Certificate.
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I own a property (house) with 1 other person. Both of us

Customer Question

I own a property (house) with 1 other person.
Both of us wish to remove my name from the deeds in exchange for a cash settlement. I put £50.000 deposit down on the original purchase. Am I legally entitled to recover this amount or is any settlement dependant on the current valuation of the property?
Submitted: 1 year ago.
Category: Property Law
Expert:  Thomas replied 1 year ago.

Hi,

Did you execute a declaration of trust stating what percentages of the equity you each own in the property?

Is there a reason why you would not receive (at least) the £50, 000.00?

Tom

Customer: replied 1 year ago.
I did not execute a declaration of trust stating what percentage of the equity is mine.
However I can prove that I have paid £50,000 deposit when the property was originally purchased via my bank accounts.
I cannot see any reason that I shouldn't receive this back on transfer of the deeds, unless it is affected by the current valuation of the property?
Expert:  Thomas replied 1 year ago.

Thanks. Drafting your answer now. 3 mins please..

Expert:  Thomas replied 1 year ago.

Hi

Thanks for your question. I will try to help.

First of all, if you and you partner presently hold the house jointly (as joint tenants) 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):-
https://www.gov.uk/joint-property-ownership/change-from-joint-tenants-to-tenants-in-common

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.

Basically, you will receive whatever you actually negotiate and agree.

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. If your partner had not equally contributed during this time then you would be able to claim greater than 50% of the equity.

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, but this is a very specialised area of law and the legal fees are very expensive.

So, unless there is a declaration of trust your starting point for negotiation should be 50:50 or such other percentage as you think is proper and fair.

If there is a mortgage on the property then you won’t be able to transfer the property from your joint names to his sole name without either your partner remortgaging or otherwise repaying the current mortgage that you have.

He cannot transfer the property in to his name without you signing the land registry transfer, so do not agree to a price that you are not comfortable with.

My goal is to provide you with a good service. If you feel you have received anything less, please reply back. Please remember to leave positive feedback using the stars at the top of the page.

Kind regards,

Tom

Thomas and other Property Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you for your reply. It has been most helpful.I have several further questions. Currently I have a large number of possessions in the house in which I hold a joint mortgage. However, the other party in the joint mortgage - who is the current sole resident at the property, due to an Occupancy Order which excludes me from the property - is restricting my access to the property, only allowing me access under certain conditions, such as themselves being present, and personally overseeing and restricting the possessions I remove from the house.I have previously decided to wait until the start of September, when the Occupancy Order against me has expired and I hoped the sale of the house would be agreed and actioned, before moving to reclaim my all possessions in the house. But I am becoming concerned the sale will not have taken place by September, and/or my co-mortgagor will not allow me to reclaim the possessions I have in the house.Can I force them legally to grant me access, just in order to reclaim my possessions (which is now the only reason I would now ask to enter the property, since I no longer wish to reside there or have any unessential contact with the co-mortgagor)? Furthermore, since she is, via her actions, taking custody of my possessions, is she deemed in law and/or equity, to be holding them in trust for myself, and so entitled to reimburse me for their loss and/or damage whilst in her custody?Also, the co-mortgagor has threaten to apply to extend the Occupancy Order against myself, as she claims, during a dispute over possessions I wished to retrieve, that I "squared up" to her outside the house. I, and another witness, dispute this. I assert that I have no intent to harm the co-mortgagor, as she claims - my desire is only to obtain what I believe to be my possessions. I believe that extending the Order another 6 months will only create unnecessary delays to the retrieval of my possessions. Has she grounds to extend it?
Expert:  Thomas replied 1 year ago.

This is something you should have mentioned in your original question.

Why had she got to occupancy order pkease?

Customer: replied 1 year ago.
Applied for because I was sectioned under the Mental Health act and she believes my occupation in the house would be a potential physical threat to her wellbeing.
We both want to change the current arrangement from joint ownership to my name coming off the deeds in exchange for a cash settlement. Another party is prepared to offer me £40.000 to take on the joint ownership/mortgage, however this would a substantial loss from my initial deposit of £50.000. Do I have any grounds to ask for a better offer?
Expert:  Thomas replied 1 year ago.

Hi,

You would probably have to apply for a court order or a variation of the current order to gain access to get your possessions or to have them delivered up to you.

You don't have to agree to a settlement you do not consider fair, but you have to consider what is practically acheievable in the circumstances.

If the only offer is the £40, 000.00 is the only available route to resolving the settlement and you do not consider it unconscionable to accept it then this may be the way forward, but you should consider having at least a consultation with a solictior in person before agreeing to it because you do not want to sell yourself short.

Tom

Customer: replied 1 year ago.
Also, initially she initially claimed she needed an Occupancy Order to prepare the house for sale, by redecorating, repairing damaged., etc. This is in the wording (or words to that effect,) of the initial application for the Order. Months later, she has not done any of this and admits this freely. Is she in breach of the Order?
Expert:  Thomas replied 1 year ago.

Hi,

I don't know. It depends on the wording of the order but you may consider revisiting this should you apply for access.

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