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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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Ive split up with my girlfriend we own our house her mum

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Hi ive split up with my girlfriend we own our house her mum gifted us money to own half the house she is down as an occupier and not on the deeds i decided she asked for time apart so i been at my mums, shes now decided we should split but is carrying on with the building work i wanted to know what can i do as im on the deeds
JA: Where is the mother? It matters because laws vary by location.
Customer: Shes at our House in sandhurst berkshire
JA: What steps has the mother taken so far?
Customer: She can contributed towards the building work done so far bit when i asked what we doing with the house she said she domt know but it now seems they want to carry on without me there
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Thats it thank you

Welcome to Just Answer.

I will be happy to assist with your question today. I need some time to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

is your name on mortgage?

do you have any agreements as in joint or tenants in common?

are you still paying mortgage?

would your partner be able to remortage?

F E Smith and other Law Specialists are ready to help you
Customer: replied 15 days ago.
Hi yes mine names is on the mortgage and i do still pay mortgage it is a joint mortgage with me and my ex partner but her mum gifted us half the money for the house to own half but on the paper work is is just an occupier and i dont think she would be able to remortgage on her own

It was good to talk to you today. I said I would confirm what we spoke about.

Firstly, if you can agree between you what you are doing, then do so. You will save GBP250 per hour EACH in solicitors costs. There is absolutely no point in lining a solicitors pockets.

Solicitors can wind both parties up “you are entitled to this that and the other” because they get paid for the argument. I have known people have expensive arguments in court only to end up settling for what they had agreed and in the first place.

Let me first deal with the house in isolation assuming there was just the 2 of you involved.

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.

My concern with the building works is that they become protracted and delayed which would in effect devalue the property if it was going to be sold. It wouldn’t matter of course if she was buying you out and if she bought you out you would have course save substantial estate agents costs.

The gift from your “mother-in-law” was an absolute gift and it’s out of the equation but in respect of all the work that she’s done on the property sense, she has a financial/beneficial/equitable claim for an interest in the property as a result of that contribution. It actually applies to the extent that she could also force an order for sale.

I mentioned a Order for Sale earlier and I will reiterate here:

No one can be compelled to continue to own a property which they no longer wish to own and they are able to force a sale through the courts if necessary.

The remedy is to make an application to court for an order for sale under section 14 of the Trusts of Land Appointment of Trustees Act (the Act).

Anyone wishing to sell may find that a strongly worded letter from a solicitor threatening a court application and an application for costs, may focus the mind without actually having the need to get to court.

Check house insurance to see if there is legal expenses cover that would pay for the legal cost of taking the matter to court.

If I were advising anyone who has received a letter threatening an application to court under the Act and an application for legal costs, I would tell them to get the agents sign up immediately and cooperate with the sale because if they make the court application, they are likely to get it and they are likely to get costs awarded against them.

So cutting through all that, my advice:

agree what your mother-in-law’s financial input in respect of the improvements (not the original purchase price gift) is worth.

In respect of the balance, split 50-50 assuming that no work has been done by your partner.

In respect of whether a spouse/partner has moved out/ can return to the property, the situation is legally straightforward but practically a bit of a nightmare.

It doesn’t matter whether one person moves out or not and it doesn’t matter what the reason is, it doesn’t affect their financial interest in the property. The court looks at it that if they move out, they do so for a reason because it’s no longer tolerable to stay in the property.

If the couple are married, and whether the property is owned or rented, it is the marital home and even if one has moved out, they are free to move back at any time unless there is a court order preventing them. They are free to come and go as they like. If they are not married, the same applies if the property is jointly owned. If it is not jointly owned, the non-owner has no right to return to the property.

If the resident spouse/partner locked them out of the house, they are entitled to a key and could take the resident key retaining spouse/partner to court for a court order to compel them to hand over the key. The Claimant spouse/partner could ask the court to award costs against the reluctant spouse/partner on the basis of their unreasonable behaviour.

That would apply whether the property was rented or owned. It also doesn’t matter whether it’s in one name, the other name, or both names. It also doesn’t affect the financial claim in the property.

If the property is owned and joint names (but not a sole name unless it’s in the name of the spouse/partner who wants to get back in) then the spouse/partner wishing to gain entry can actually break in and charge the reluctant spouse/partner for the costs. If doing that, it’s always a good idea to use a locksmith to minimise damage and cost.

It is also a good idea to ask the police to attend so that the resident spouse/partner cannot allege violence or breach of public order. The police will not usually attend unless there is a complaint but it’s always a good idea for the spouse wanting access to get their version of events in first.

Let me tell you now that a spouse/partner wishing to exclude another can be remarkably “inventive” (they lie) when it comes to “creating” allegations of domestic violence in circumstances like this.

2 lawyers, a solicitor and barrister (both ladies as it happens) who I know estimate that at least 50% of the allegations of domestic violence made by spouses/partner wishing to exclude the other, in circumstances like this, are spurious. The courts will normally however err on the side of caution and it’s all too easy for them to make the allegation and end up with a non-molestation/occupation order to exclude the other.

The other question which often gets asked is whether remaining spouse/partner is allowed to have a new partner/boyfriend/girlfriend in the property. The situation is legally straightforward but practically a nightmare.

The spouse /partner can have whatever guests (boyfriend/girlfriend) they like in the house. However when the spouse goes to the shop for example, the other spouse/partner can ask the “guest” to leave only for the returning spouse invite them back in again when they return from the shop.

So to summarise that, you are perfectly entitled to move back into the property to oversee things. Or just because you want to.

I am glad to help.

Hopefully, I have answered your query in a way that is simple and easy to understand.

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Thank you.

Best wishes.

FES