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Thomas
Thomas, Solicitor
Category: Property Law
Satisfied Customers: 7626
Experience:  UK solicitor holding an England and Wales practising Certificate.
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Unmarried couple cohabitating in property are splitting up.

Customer Question

Unmarried couple cohabitating in property are splitting up. Both have names on mortgage and deeds. Both paid different deposits at start. Can the person who paid the biggest deposit reclaim that before the 50/50 split of equity
Submitted: 1 year ago.
Category: Property Law
Expert:  Thomas replied 1 year ago.

Hi,

Are there any children of the relationship?

Did you execute a declaration of trust stating that you put in bigger percentages or otherwise had differing percentage interests in the property?

Tom

Customer: replied 1 year ago.
Hi tom. I have two kids from a previous relationship and only my son lives with me. He just turn 18 and is still at school in 6 form.
There was no declaration when the house was Bourght three years ago but I still have the bank statement showing the money paid by both of us.
Expert:  Thomas replied 1 year ago.

Thanks. Drafting your answer now. 5 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):-
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.

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 (or contributed differing deposit and therefore should receive different amounts from the sale) and it could also say that each person only retains their percentage interest in the property subject to equal contributions to the relevant outgoings for the property

You may conceivably have a claim against the solicitors who acted on your behalf if they did not advise you that you could execute a declaration of trust outlining this.

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. You should ask your solicitor if they are an expert in this and why (if they are) they consider that you would not have a claim.

The contribution of a greater deposit is a fairly good starting points for a claim under the act and I would expect you to be on the front foot in negotiations if a larger settlement is not agreed at the outset.

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

Expert:  Thomas replied 1 year ago.

Hi

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 the information I have provided. If you have no further questions then please do leave positive feedback using the stars at the top of the page.

Kind regards,

Tom