Advice Needed - buying out a reluctant ex

alisoncar

Jamesd:

unfortunately you are wrong and BitterAndTwisted is correct.

This is because the OP said that "Mortgage is in both names" (easy to overlook since the OP stresses that her partner has been the one paying for everything.THis is unfortunately completely irrelevant up to the point of the relationship ending as the court would presume it was a joint decision for him to pay and for his ex partner not to).

Therefore her partner and his ex jointly own the property; the question is only how the proceeds from the sale should be divided. My guess is the property is owned jointly and not as tenants in common (to the OP: this would only mean they set up their respective shares in the property when the property was bought, eg it could have stated your partner owns 60% or more instead of the default option of 50%) therefore the ex is entitled to 50% of the net sales proceeds.

The only way how to get his ex to sell the house is by agreement or you can go to court and get an order for the sale of the house (fairly expensive). If you were to go to court there is a chance you would be awarded a little bit more than 50% split (given the value of the property and the court costs there is no point in you getting a few £k extra though as the legal costs will most likely be higher than that; an agreement is preferable here even if you were to give his ex 50% of the sales proceeds).

This is because the court would look at who paid for what since the partied departed:

a) seeing your partner's ex has changed the locks you stand high chances of occupational rent being awarded since the split as your partner has been excluded from the use of the property (ideally obtain a confirmation of that in writing should you want to go to court, eg your partner shoudl send a letter to his ex stating locks have been changed and for her to give him explanation of this - you will hope that she'll reply saying she changed the locks because...."whatever" but it'll mean you have a proof in writing of this)

b) his ex should be paying half of the mortgage, half of the house insurance and all the bills such as council tax/water + gas and electricity which she uses. If she has not been doing that this should be repayable to him under equitable accounting principles

I have just googled a fairly good overview for you to look at:
http://www.kentsolicitor.co.uk/lawareas/unmarried_couples_property.htm

Please ignore the "Having decided the division of equity consider equitable accounting. If one party pays the whole of the mortgage repayments due from both of them, the paying party will be able to claim from the non-paying partner his or her share of the mortgage i.e. one half of the mortgage repayments." as this is rather misleading; most likely the court would only look at equitable accounting AFTER the relationships ended since your partner and his ex had joint accounts and the length as well as the conduct of the relationship suggests he was paying her portion willingly, they assumed this may be the way when they bought the house and your partner did not object in any way back then nor throughout the duration of the relationship (as you say there never was any discussions about what would happen if...).

So it all comes down to whether you are happy and able to pay your partner's ex half of the "profit" i.e. in your case £25k? Would she accept this or not?

If so,then provided you are able to buy her out the legal work is fairly straightforward and cheap, please see one of the previous posts which listed the steps that needed to be taken.

If there is no agreement then you will have to go to court as you risk your partner's ex staying in the house forever as she can always make things difficult when viewings are conducted or she may not return her paperwork in time when you have a potential buyer causing the sale to collapse. etc.

jamesd

alisoncar, what I'd really missed was "I've checked the title deeds with the land registry and that has the house registered in both names". That makes them joint owners with her I think having minimal interest due to a lack of financial contributions.

Thanks to you and BitterAndTwisted for prompting me to take another look! I'm adjusting some of my earlier replies appropriately to better reflect the situation.

I don't agree that a court will simply use a 50-50 split for the time they were together because the financial facts completely contradict the presumption of 50-50 ownership that a joint Land Registry entry suggests. I've seen decisions where that was largely ignored in the light of one-sided payments, in favour of what the facts demonstrate about actual intent. And here that provable intent was 100% him even though her name was on the mortgage and hence deeds, presumably just so they could qualify for the mortgage and not as any intent for her to have any actual ownership interest.

Regardless, they need a solicitor for personal advice and the sooner the better.

romanempire

The key phrase in all this is:-

"the whole course of the dealing".

So while the ex may be named in the Land Registry the "whole course" is 25 years of the ex not contributing. Probably the ex believed the urban myth of 'common law marriage' and believes that will entitle her to half the house.

R.

BitterAndTwisted

The starting-point for the courts when deciding on a split of assets is 50/50. This is made even more compelling when seen that as a couple they decided for reasons unknown that the ex would make no monetary contribution. Contributions towards a partnership or marriage don't always have to be financial. That there are no children involved slightly weakens the ex's position, but not completely, because she obviously didn't work part-time or have her earning potential compromised by having total responsibility for the raising of a family.

Let's not forget here that this person has had this property as their home for the last 25 years. Their ex may have decided to end the relationship and "move on" but the consequences may be devastating for her. I wouldn't much fancy coming out of a relationship only to find myself potentially homeless with just £25k in cash to make a new start in middle-age.

xylophone

Re ownership - it really is important to establish definitely whether the house is owned as joint tenants or tenants in common - see http://www.actlegal.co.uk/faq/buying-house-faqs/35/
http://www1.landregistry.gov.uk/upload/documents/SEV.pdf - for information.

Your partner would be wise to take advice from a solicitor as to how to proceed?

jamesd

BitterAndTwisted, him paying supports the conclusion that there was no joint ownership, not that there was. That position is also supported by her keeping independent finances. Given the apparent facts I don't think that she's really legally entitled to any part of the value of the property. She seems to have been content for him to buy and maintain the property while she was using her own money for her own independent spending. But a settlement that gives her something is probably cheaper than legal bills if it's not unreasonably high. Had they really been pooling finances or had she been contributing even in proportion to income that'd be a completely different story.

I agree that her position is an unfortunate one for her. But she's an independent adult and relationships come and go. Just as he has to deal with changed circumstances, so does she.

Subject to legal advice I might be inclined to have a solicitor point out to her that they believe that she has no legal right to any part of the value of the property based on the contributions but that to make life easier for her when transitioning to a new life they offer a payment of x to help her get resettled in a new home of her own.

Agree with xylophone about tenants in common or joint. Their solicitor will undoubtedly cover this.

Red1708, I'm sure it's abundantly clear to you now why you have to get a solicitor involved. Sad necessity.

Still, you and he could move into the house if you wanted to. It might be of interest as a non-legal approach to helping her to recognise that it's time to move on and stop depending on him to finance any of her life.

Mojisola

I'm with those who think you need to go to a solicitor.

It's worth reading up on some of stuff from this website - https://www.advicenow.org. uk/living-together/housing - especially
http://static.advicenow.org.uk/files/how-do-you-own-your-home-70.pdf
http://static.advicenow.org.uk/files/lt-housing-2010-1208.pdf

Thrugelmir

jamesd wrote: »

BitterAndTwisted, him paying supports the conclusion that there was no joint ownership, not that there was. That position is also supported by her keeping independent finances. Given the apparent facts I don't think that she's really legally entitled to any part of the value of the property.

In law the other party is a joint owner of the property. Therefore as has already been said the starting point is 50/50. The fact that the parties concerned had different earning levels. Should have been addressed at the outset with a declaration of trust. With hindsight it could be argued that the arrangement that was in place was acceptable to both parties.

A court will need not wish to spend time arbritrating between warring parties. The only winners will be the legal representatives. Something which a good solicitor will stress at the outset.

Common sense suggests that a straight split of equity is the most cost effective way of settling the issue.

jamesd

The trouble is cases like Kernott and Jones:

1. Lower court ruled Kernott got 10%.
2. Appeal court ruled Kernott'd get 50%.
3. Supreme Court ruled Kernott gets 10%.

There the Supreme Court noted that Kernott had been paying for the time Kernott was there, so Kernott got credit for that, but got no credit for the time when not paying and ended up with just the 10%.

Which is part of the reason for my view that the former cohabitee we're discussing here is legally entitled to nothing or close to it, because she'd financially contributed nothing.

Such uncertainties and the costs of legal action leave room for settlements.

Definitely best to have sorted it out with an explicit declaration at the outset.

Thrugelmir

jamesd wrote: »

There the Supreme Court noted that Kernott had been paying for the time Kernott was there, so Kernott got credit for that, but got no credit for the time when not paying and ended up with just the 10%.

That's a simplistic media summarisation of the case. The precise circumstances were actually more complex in determining the judgement.