Forcing a sale of a house

Hi,

Would appreciate some help on this.

I'm having to apply to the courts (via a solicitor) for a force of sale of my jointly owned property.

I left in July 2010 and my ex-partner is still there along with her 11 year old daughter (not my own flesh and blood). She is refusing to buy me out.

I have 2 questions:

- What is the likelyhood of me succeeding in forcing the sale?

- I'm going to pay £1,500 to the solicitor to start the application (he says he needs this as a starting point to do the work, court fees could be £1k). Am I over paying?

Thanks for all your help.

I see nobody has replied, so I had better try.

The first thing I want to ask you is this : you used the word ' partner '. Now without wishing to be judgmental, does this mean that you are not married ? Some people use ' partner ' as a way of referring to a spouse.

The answer to your question depends very much on this.

However, if, as I assumne, you are not married, then I suspect the answer is not what you want to hear.

That is :

1. The Court undoubtedly has the power to order a sale.
2. However, whether it would do so is a matter for the Court's discretion.
3. In exercising that discretion the Court would look at the underlying purpose why the property was bought.
4. They are required to have regard to certain factors in section 15 of the Trusts of Land and Appointment of Trustees Act 1996.
5. One of those factors is the welfare of any minor child who occupies the dwelling as his or her home.
6. Where is a dependent child, as in your case, there is a strong probability that the Court will delay a sale, perhaps until your step daughter is 18.

If you are married the Court has very wide powers and it could also delay a sale, perhaps for an even longer period.

The long as and the short of it is that it is unlikely the Court will leave your step daughter without a home.

As regards the £1500 you mention, I don't think that's over the top as an interim payment. I am afraid my advice to you is that any application to enforce a sale at this stage is likely to fail, and I think you might more profitably keep your money and wait for a more opportune time.

I haven't gone through all the facts with you. If your partner is swimming in money and could easily rehouse herself and her daughter, then you might have a chance.

But you asked for an opinion, and you've got it.

Hi both,

Thank you for your reply LittleMrMike, it was really useful as the situation is fairly similar to mine. You seem to have good knowledge on this so I hope you don't mind me asking if you might be prepared to comment on my situaton. Perhaps also the answers might help Effect21 further too?

My unmarried partner and I bought a house jointly 50/50 as tenants in common in Sept 2009. I put down £43K deposit and although we had a declaration of trust detailing this (drawn up by a solicitor) unfortunately it was never signed.

The agreement between us was that he would pay half of the 43K deposit off over 5 years on a montly basis from May 2010. However despite my asking for it he did not pay anything until July 2011 and so far has only paid one month of the balance.

I hope because of the solicitor having drawn the document up and talking to us both about it at length at the time of purchase, that will be enough proof to guarantee the deposit is paid to me on sale whatever happens. The solicitor has said he would be willing to back me up if it ever came to it in the courts

However, the main issue is..

At the time of purchase his daughter (now 15) was staying with us every other weekend and although there had been vague conversations about her spending more time with us at that time there was no consideration that she may come to live with us full or part time.

In the summer of 2010 however she fell out with her mum and stepfather and they threw her out. My partner came home one night with her basically saying that she had to live with us now. We had a brief conversation about it (a little in shock) and I verbally agreed that we could try to make it work.

Anyhow, a year has passed now and the daughter is living 7 days out of every 14 with us and 7 with her mum (they patched things up a bit).

However despite the amount of time she is living here, as things have developed I am unhappy about the situation as I feel it has put too much pressure on our (me and my partners) already difficult relationship and impacted on my home/space too much. This is compounded by the fact that he has never contributed a penny for her to live here and all bills and mortgage are paid half half by me and him.

I have said that I am unhappy and am requesting that we all move out and either rent or sell. Although I feel guilty in saying this we are not married and as I am no longer prepared take on the responsibility of his child, let alone support her financially which I am doing by proxy.

However he says that I am the one who should move out as I am unhappy and I think he will fight to stay in the property. I feel this is grossly unfair, not only because I paid all of the deposit (which he has barely paid any of his share of) but also because he brought his daughter to live in the house which has had a huge impact on our relationship and he is dictating everything in terms of the space and finances by refusing to pay anything for her.

I know we need to go to mediation but please can you give me your opinion as to whether I would be able to force sale if nothing else worked. I know she is a minor but we are not married, she has not been living with us very long and also he will benefit from the sale of the property and certainly be able to rent somewhere else if not buy.

Also - I want to move out as I am miserable but would this weaken my position? And if I did move out would I still be liable to pay for my half of the mortgage - I certainly would not be able to pay that and rent somewhere else so I'd be stuffed.

Any suggestions or advice would be really appreciated. Many thanks in advance
Simone

Forgive me if this seems like a cop out, but I think I can be fairly definite on one or two things, and one of them is that where you have an unmarried couple buying property jointly, it is important to make sure, firstly that you are both in agreement on matters like what your respective shares in the property are to be, and secondly that this intention is clearly laid out in the documents.
The second matter about which I can be definite is this : as far as the lender is concerned you signed the mortgage and the the lender could take action against you, or your partner, or both, in the event of default.
Thirdly, I'm pretty sure that a sale could probably be forced sooner or later ; as I said in my previous post, a Court has powers to delay a sale and might well do so for a period to give the parties time to relocate.
In your case, the fact that the house was intended as a residence for the two of you, might suggest that it was a residence for you alone and the fact that the young woman moved in later is irrelevant ; but the Court decides that, not me.
As to the division of the proceeds then you are up against the very important House of Lords decision in the quite recent case of Stack v Dowden. My understanding of this decision is that the parties are assumed to own the property in equal shares unless the contrary can be proved ; so if you are saying the agreement was that if the property was sold, (a) you would get your deposit back and (b) the rest would be divided equally, then it would be for you to prove that. The fact that an agreement was prepared in draft, and that you went ahead, might lead a Court to accept your version.
But it is clear the Court has a discretion, and please don't ask me to second guess a judge. It is clear to me you need legal advice ; in such cases you almost always do.

LMM

Thanks very much for your quick reply and consideration. Legal advice is the next thing to do for sure.
All best
S

Ah, this is pretty much the concern I have. My ex husband is in situ in the ex marital home. I am in rented with the 15 year old daughter and I want to sell. The property has no equity and he won't be able to 'buy' me out or remortgage.

If I go to court, will they allow me to sell the house and effectively make him homeless? He does work and has wealthy parents. I earn more than ex though.

Hope you don't mind yet another question along these lines.

Well, the concern of the Court is to make sure you both have homes.

You say he lives in a house with no equity. Can he afford to do that ? Can he meet the mortgage repayments ?

Is the house and in joint names and are you a signatory to the mortgage ?

There is no law in living in a house with negative equity. But if the property is partly in your name, and you are a party to the mortgage, there is a risk that you could be sued if he defaults .

If the property is in joint names both of you need to sign the transfer, so if he refuses, you would need a Court order to make him sell. But that, of course, would leave him with no home.

LMM