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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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I just saw the ruling in the case Springall vs Paice by

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Hi, I just saw the ruling in the case Kim Springall vs Gary Paice by judge ***** ***** (Central London county court). This case concerns me greatly, since I may be in a similar position: I'm not married and have one child with my partner whom I'm about to split from. The house was bought in my name alone (he did not have a steady income) in 2004, he contributed 100,000 to the downpayment, my contribution was 150,000. Since 2004 I paid the mortgage and all other outgoings (council tax, utilities, insurance) by myself, with the exception of the odd maintenance/repair/decorating bill. Since the birth of my daughter in 2000 he hasn't worked at all, yet I had to provide a lot of the childcare as well. I stayed with him purely to provide a stable environment for my daughter. His economic inactivity also led to me feeling forced to cling on for many years to my insecure freelance job which does not provide a pension, so I always assumed that the house provided a form of safety net for myself. By my calculation he owes me 15 years of monthly mortage and utility bill contributions which amount to roughly 135,000 and would, I assume, thus outstrip his downpayment of 100,000? I used to think this would be a clear-cut case since we are neither married nor was my partner's name on the property's title deeds, however the Kim Springall case appears to render all of this meaningless. Can you advise?
JA: What steps have you taken? Have you filed any papers in family court?
Customer: No, I haven't approached anyone yet.
JA: Have you talked to a lawyer about this yet?
Customer: No.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No, I think all the info is in my original request for advice.
F E Smith

Good afternoon. I will assist with your question - be aware this is an email not chat service therefore i maybe delayed in replying.

for background - did you assume your financial input would be coming back to you even without making a written agreement to safeguard it?

did he get a written agreement as to his input?

and you daughter is now 19?

has he asked for his share of the property?

 

 

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Customer: replied 7 days ago.
Hello, ok - let me start with the last question: yes, my daughter is 19 now and at university. No, he has not yet asked formally for his share of the property, however he has in the last few months repeatedly remarked on "selling the property and splitting the proceeds". I have not replied to this. I don't think he has taken any legal advice on this but would just assume he has that right. At the time of the purchase, the mortgage lender requested a letter from him that confirms that he will provide the loan as a non-returnable gift. He phrased this as follows:
'I confirm that I will be providing Ms D Seeland with the deposit amount to which you refer as a non-repayable gift.' The sum was not named, however the mortgage provider should have a record of that, as well as the signed original of this letter.
At the time of the purchase of the house I still hoped he would work again and we would, eventually, be in a position to share the outgoings and expenses equally, however this never happened. So yes, I did assume my financial input would come back to me since the mortgage and title deeds are in my name only. Would I have an obligation towards someone whose roof over his head I have financed entirely myself for 15 years, and whose name is not in the title deeds?
Also, I thought it might be worth mentioning that we always had separate accounts.

It appears that the parties in the case that you mention are quite litigious:

http://constructionblog.practicallaw.com/harding-v-paice-and-springall-the-christmas-special/

 

although it isn’t particularly relevant to what we are talking about, it does indicate the nature of the parties. It seems they also don’t mind airing the washing in public.

http://constructionblog.practicallaw.com/harding-v-paice-and-springall-the-christmas-special/

however, moving on:

you need to sort out the mathematics before you look at the legalities because the legalities will apply to the mathematics to establish exactly what financial interest the nonowner has in the property.

Indirect payments such as council tax utilities et cetera may be taken into account in respect of the division of the property but only if it’s accepted that was in lieu of contributions to, for example, the mortgage.

You need to remember that the majority of the mortgage payments were interest and it could well be that the court would take the view that as he was not working and you simply funded his lifestyle, you were doing that gratuitously. The situation in the case law that you quote is quite different.

The situation would be clear-cut if both names were on the deeds: not favourably clear-cut because it would be 50-50 regardless. There is already very unfair case law on that.

I don’t know whether that deals with this issue for you or not because you haven’t actually asked a question. Thank you

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Customer: replied 7 days ago.
Thanks for your reply, and for providing the context to the other case. My question was really whether my partner could walk off with half the proceeds of the property's sale - you are saying there is a possibility he might, but it's not clear-cut, do I understand this correctly? I have no intention of going to court over this as the legal cost would likely outstrip the proceeds of the house, but I have no idea what he might do. Thank you.

I am glad to help.

The answer to that one is simple.

If you are not married and the house is not in joint names, then he cannot get 50 percent. But if you were, and it was, he would.

 

If 2 people own a property are not married and there are no children and there is no agreement to the contrary as to what will happen when the property gets sold, then it is split 50-50. It doesn’t matter what each person puts in by way of deposit and what each person puts in over the period of ownership, it split 50-50. It does not matter that one of them pays all the mortgage and puts all the deposit in and the other one sits by and does nothing but drink tea, it is split 50-50.

The courts have decided that if a couple are buying a property together they would have an agreement if they were putting different amounts of money in and wanted money out in proportion. They would safeguard their “asset” by putting it in writing.

Relevant case law is Kernott v Jones.

I will say that I don’t agree with this decision but I don’t make the law, I just regurgitate it. The case does go on to say that if the couple were living in the property and one party moves out, then any contributions to the capital or fabric or improvements of the property, after that person moved out but which were made by the one remaining, will be taken into account with the final division of assets from a sale of the property.

What the case law goes on to say is that any contributions to capital (not interest) and any maintenance or payment towards the property other than the mortgage, after a couple split up will be taken into account in the division of the assets. The reason it all isn’t taken into account is that if you have the benefit of living in the property then you have the burden of paying the mortgage.

Not relative to the case law but if either party wants the property sold, then the reluctant non-sale wishing party can be taken to court for an order for sale under the Trusts of Land Appointment of Trustees Act s14 and they would usually get the order against the reluctant seller and get caught and solicitors costs also awarded against the reluctant seller. If anyone ever threatens to apply to court for an order for sale, my advice to the other party is to get the estate agents sign up straightaway.

Meanwhile, a person is not responsible for the mortgage or the bills of a house that they do not live in although they remain liable to the lender if the other co-owner stays in the property but doesn’t pay.

 

 

Because he put in two fifths of the purchase price he certainly has a substantial claim even to the point where he can make an application to court under section 14 of the Trusts of Land Appointment of Trustees Act to compel a sale of the property.

Avoid bloodsucking leech solicitors.

Can I clarify anything else for you?

 

I am happy to answer any specific points arising from this.

 

Please take a moment to look at the top right-hand corner of the page and rate my service by clicking one of the stars at the top of the screen.

 

You may need to login again to use the rating service. Although it says "rate to finish" it doesn't close the thread and we can still exchange emails.

 

It's important that you use the rating service because that gives me credit.

 

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There is also an experts incentive scheme whereby the more 5 star ratings I get I do actually get a pat on the head!

 

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Thank you.

 

If you still need any points clarifying, I will still reply because the thread does not close.

 

Best wishes.

 

FES

 

 

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Customer: replied 7 days ago.
Thanks so much, that is much clearer now. One more question resulting from this: it will be most likely me wanting to sell the property, and his share is actually closer to one fifth (the mortgage, also in my name only of course, was quite substantial). Can he refuse to move?

Can we refuse to move?

Lock him out.

He may have put money into the house but it is not in joint names. Woolwich building society may have put money into the house but it doesn’t give them the right to live in it.

Surprising night may seem, he is just the guest and he has no more right to be in the house and the man across the street, the man at a bus stop or me!

Even if he was paying rent then he would only be entitled to one months notice which does not necessarily have to be in writing, but it’s better if it is.

You cannot manhandle amount of the property and what you might want to do, if living with him is intolerable and you think that he is going to be difficult if you throw him out, is either involve the police and tell them you are concerned about a breach of public order and/or apply to court for an injunction to compel him to move out.

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Customer: replied 7 days ago.
Thank you, this is really helpful to know. You certainly put my mind at rest a little!

I am glad to help.

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