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TK Legal
TK Legal, Solicitor
Category: Law
Satisfied Customers: 240
Experience:  LLB, MCIArb
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Me and my partner are currently living in my fathers

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Hello,Me and my partner are currently living in my fathers property (private renting) but he will be gifting the equity in the house as a deposit to mortage this property.The mortgage will only be in my name.I do have a question and that is me and my partner are having domestic issues at the moment and if we were to break up would she be entitled to any off the property once it changes to my name?I really do appreciate your help.Kind regards
JA: Where are you? It matters because laws vary by location.
Customer: England
JA: What steps have you taken so far?
Customer: None at the moment
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No

Hello dear, welcome to JustAnswer ! My name is ***** ***** I am happy to assist you today with your legal issue. I am just reviewing your question. This is an email service so there may be delays when responding. Please bear with me if I need to ask you some clarifying questions. Thank you!

Are you married?

Customer: replied 13 days ago.
Not married no she has a child from a previous relationship and we have a child together

Normally, she will have no legal right to stay in the property if you ask her to leave except if she can prove that she has beneficial interest in the property. For example, if she can prove that she has made financial or other contributions to the house. The problem you might face, however, is that you have children and if the court decides that she needs the house for the children, then she might have an entitlement to the house.

Customer: replied 13 days ago.
What would beneficial interest be? Say if she contributed to some underlay for the carpet or for a tub of paint for the walls even though I gave her £3000 to clear her cerdit card? What kind of entitlement could this be? She wouldnt be entitled to any equity or half the house would she? Thank you

Disputes regarding beneficial interests in property often arise where a property is solely owned by one cohabitant. The other cohabitant may have an interest where the cohabitant who owns the property in their sole name makes a valid express declaration of trust in writing declaring that they hold the property beneficially in trust for themselves and their cohabitant, and declaring their respective shares. This is an express trust. If there is no express trust, and a non-legal owner wishes to claim a beneficial interest, they must establish one of the following:

  1. a resulting trust, which arises where the non-legal owner contributed in money or monies worth to the purchase, when there is a (rebuttable) equitable presumption that it was the cohabitants' common intention to hold the beneficial interests in proportion to their contributions.

  2. a constructive trust, which may be established if a cohabitant can show a common intention that they should have a beneficial interest and, crucially, that they have acted to their detriment on this basis—the Court of Appeal has emphasised the need for claimants to produce evidence that is capable of establishing detrimental reliance

  3. proprietary estoppel, which a non-legal owner cohabitant may be able to establish if the cohabitant legal owner has led the non-legal owner cohabitant, either by words or conduct, to believe they have a beneficial interest, as a consequence of which the non-legal owner cohabitant has acted to their detriment, making it unconscionable (in equity) for the legal owner to insist that they have total beneficial ownership of the property in question—in a case of proprietary estoppel, the court has a discretion to only do the minimum required by equity to effect a just outcome

Here is a useful link for beneficial interest: https://england.shelter.org.uk/legal/relationship_breakdown/cohabiting_couples_sole_owner/rights_to_occupy_the_home/beneficial_interest#4

From what you have said, she will not have beneficial interest just underlaying a carpet of for a tub of paint. She can, however, claim that she needs the house for the children.

It would be better if you could both have a cohabitation agreement outlining who will get what if the property is purchased in your name and also terms relation to children.

Customer: replied 13 days ago.
Ok and if she claims she needs the house for herself and the children she wouldnt than own any of the house would she but she can just live init until she finds something else?

That's right. Or you can offer her some lump sum payment so she can afford a house somewhere else for the children. There is a scheme which is called "Shared Ownership" for the first time buyer with less income.

Alternatively, she will stay in the house until the children are 18 or in full time education. In a very rare situation, she will have full entitlement to the house. However, please make sure if you have an agreement as she might claim later that you have promised her that she will get share if any of the properties is sold.

Customer: replied 13 days ago.
Ok and would I still have to pay for the house if she is living in it and Im not? The valid express declaration of trust cohabiting agreement , is this completed by a solicitor or can this be agreed amongst ourselves and will it require a witness? What does an express declaration of trust usually look like?

If she can't afford to pay, then you have to make the payment as otherwise she will have beneficial interest in it as she will contribute to the mortgage.

Here is a link for you to get the idea:

https://www.rocketlawyer.com/gb/en/interview/9aa5bed6-5f8a-4567-8f5c-d9dd29714164;page=1;document=ba8caab5-4b62-43f9-a195-c025f6db5c5d

I would recommend you take the help of a lawyer as it is related to your property rights and you want things to be done properly.

If you want to find a solicitor to assist with this process, you can find a solicitor using the Law Society find a solicitor search option here: https://solicitors.lawsociety.org.uk. You can search by town or postcode to find one near you, as well as area of law in this case trust law.

Customer: replied 13 days ago.
https://www.rocketlawyer.com/gb/en/documents/cohabitation-agreement The above link sent does not allow me to enter a site. The link I have put on this message is this the same document?Many thanks

https://www.rocketlawyer.com/gb/en/documents/declaration-of-trust

https://www.rocketlawyer.com/gb/en/documents/cohabitation-agreement

They are two separate document. But cohabitation agreement can cover the other as it will be expressly stated who will be entitled to what in the event of separation.

I hope that helps. I would appreciate if you could take just a second to provide a 5 star rating (at the top right of your screen). I'll be credited by Just Answer for my time spent responding to your question for which I'd be very grateful.If you need anything further, I am available for a follow up at no extra cost.

Customer: replied 13 days ago.
Thank you for your help and I will rate you. Finally do I need to complete both documents or does only one need to be complete.Thank you

You should do both as declarations of trust will be legally binding provided they are correctly executed and comply with the relevant formalities. However, cohabitation agreement can sometimes not be upheld by the court. But, in any event, it helps the court to understand the intention of the parties at the time of making the agreement. Hence, I would suggest you do both.

Customer: replied 13 days ago.
Thank you and both parties need to sign the agree ment. Once digned to we keep them ourselves or do they have to be sent to a solicitors?

You also need to have two witnesses for the deed. You can keep with you. Make sure you have few copies as well.

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