It will not be the first or last time that I have received a request for advice in a situation where, for example, the mother has separated from her partner, taking their two children with her leaving the family home which is registered in their joint names, but subject to mortgage.
The mother has been induced to leave with a promise that she will receive a lump sum from he ex-partner but this does not materialise. She is forced into rented accommodation, and does not know what her rights are in respect of the jointly owned property.
If you are in this position then the following may be of use as a summary of some of the realistic remedies available:-
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Provided you are the joint owner of the property, you have rights of occupation. If your partner will not allow you re-entry you could apply to Court for a Re-entry Order, and a possible Occupation Order to remove him from the property.
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Provided the children are natural children of both you and your ex-partner, you may consider an application under Schedule 1 of the Children’s Act for an Order you hold the property in trust for the children until they reach maturity, and if such Order were made the Court can make financial Orders in your favour against your partner to help you afford to stay in the property.
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Remember you would remain jointly and severally liable to pay the mortgage so even if you do not live there, if the mortgage goes into arrears you would be equally responsible to pay the arrears with your partner – so ideally you would need a formal agreement that your partner will indemnify you for all your liability under the mortgage until you return to live there, or the property is sold (then the mortgage would be paid off in full – subject to there not being a negative equity.
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If you do not return to live at the property and your partner refused to ‘pay you out’ at least 50% of the equity in the property and secure your release from the mortgage, you could make an application for sale by application to Court under the Trustees of Land and Appointment of Trustees Act, together with an Order your partner pays your costs.
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The threat of that might force your partner’s hand into making serious attempts to obtain a mortgagee’s consent to your release from the mortgage, upon you being paid an agreed lump sum.
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If you feel you are entitled to more than 50% of the equity, then you would have to put your argument to your partner, and/or the Court but if you had a Deed of Trust ring fencing more than 50% of the equity, this would hold you in good stead. You would not be entitled to 50% of the equity however if your partner had a Deed of Trust, for example, entitling them to more than 50% of the equity which is usually the starting point for division.
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There should be no reason why you should be deprived of your rightful occupation of the property or share of the equity.
Just to mention, if you receive a lump sum and this may affect your entitlement to certain state benefits, you may wish to check this out.
Disputes over joint ownership of property, outside marriage, can be a complex area of the Law. I would recommend that you take Legal Advice before embarking upon any action.
For more information and advice on property dilemmas contact Ringrose Law Solicitors with offices in Boston, Grantham, Lincoln, Sleaford, Spalding and Newark.