My partner and I have agreed our shares in the home. I want to sell, but my partner doesn’t. What can I do?
In this blog we consider the position of the unmarried joint owner of property on separation where there is no dispute about shares in the property. What happens when a relationship breaks down and one partner wants to sell their jointly owned home but the other partner disagrees?
1. If you want to sell and you think your partner will oppose this, always seek advice before voluntarily leaving the home. Once you are out, it can be difficult to return. Your former partner will then control access to the home and its condition. If they don’t want to sell, they can make the estate agent’s job difficult.
2. If there is disagreement about whether to sell the home, the partner wanting to sell can apply to the court using Section 14 of the Trusts of Land and Appointment of Trustees Act 1996. If an application is made, the court must take into account:
- the intentions of the partners;
- the purposes for which the home is owned (usually as a home for the partners and any children);
- the welfare of any child who occupies or might occupy the home as his/her home;
- the interests of the mortgage company or creditors with debts secured against the home.
3. Most disputes arise where one partner wants to sell and the other wants to keep the home for the children. Because the court must take into account the welfare of the children and the purpose for which the home is owned, the court will want to know that the children’s accommodation needs can be met. Even if the house is too large for these needs, would a sale leave enough money to rehouse them when added to any mortgage the partner they live with can raise? The answer varies depending on the age, income and credit rating of the partner they live with. If they can’t be re-housed securely, the court may be reluctant to order a sale.
4. Can the remaining partner afford to pay the mortgage from their income including state benefits and child maintenance? If the answer is ‘no’ then a sale is likely. Both partners are liable to pay the mortgage, but in most cases, the partner who leaves must pay rent and child support and will struggle to contribute to the mortgage.
5. If the partner living in the property after separation chooses to allow a new partner to move in, the court will almost certainly order a sale.
6. If there are no children living at the property, the court will almost always order a sale where one partner wants to sell and the partners can’t agree a fair buyout.
7. It is difficult to persuade the court to permit one partner to buy out the other against their wishes unless the court is satisfied that the price is fair. In practice, this means that where there is reliable and accurate evidence about the value of the home (such as similar properties sold nearby), the court is more likely to permit a buyout without exposure to the open market. This has the advantage of avoiding estate agents’ or auctioneers’ commission.
Unusual or unique properties may require marketing to achieve fair value for the partner who is being forced to sell their share.
Next time we will consider the position of the unmarried couple who may have agreed to sell their jointly owned home but disagree what their shares should be.