Varying a deed of trust

kmmr

My friend is having some issues with selling a flat with an ex-partner.

My friend (lets call them Party A) does not particularly want to sell, but agreed to, if they received a larger portion of the proceeds (like 60/40) rather than the 50/50 agreed on the deed of trust.

This took months, but was finally all agreed. Now suddenly Party B has started sending solicitors letters saying that Party A has attempted to renege on the deed of trust.

So, Party A says - fine, then we won't sell! Party A never wanted to sell, and only agreed as a result of the changes to the deed of trust.

So, my questions are:
Does the agreement to vary the Deed of Trust, done in writing, but never formalised, have any legal effect?
If not, can Party B force the sale of the property on the original terms.
Can Party A just say no to the sale of the property?

The deed of trust also states that A & B will hold the property as Trustees, and not as joint tenants. They were never married.

Thanks!

kmmr

Richard_Webster

From a practical point of view it depends on what the financial difference is between the 60/40 and 50/50 splits.

If the deed of trust has not been formally varied then it will be an uphill struggle in Court (a day or two at £1,000 a day for barristers, plus plenty of solicitor's time taking down written statements of what went on and making sure that what his client said would stand up in court?) to prove that there was an agreement to vary it. It all comes down to balancing the cost of going to court against the amount of money involved.

On the one hand if it is definitely a 50/50 split then there will still be some initial cost in going to court even if the case is open and shut. The person resisting such an "open and shut" case would still often be able to extract some kind of "nuisance value" settlement in negotiations.

If Party A wants to run the "we agreed 60/40" case then it will cost a lot more in costs and if he loses that will come off his share.

Does the deed of trust actually say that the property should be sold? (When I draft them I put in wording saying that either side can give written notice requiring a sale.).

If not, it comes down to why the property was bought in the first place. For instance if A & B were a couple who had children it might have been agreed that the house was for the children to be brought up in. So if A wanted to stay with the children it is possible that the court might refuse to order a sale - but A would have to show what had been agreed that would make it inequitable for a sale to be ordered. Again giving evidence of that kind of background "agreement" could take expensive court time.