How can I force the sale of a property I jointly own?
In some cases, you or one of the other owners may want to sell it when the others do not. In some cases, one or more owners may want to sell the property, but the others do not. Various legal issues can arise if parties cannot agree on a sale. It’s important to know your legal options and how to handle this type of dispute if you are involved in one.
Below we explain who has the right to force a sale and the laws, procedures, and costs associated with it. Helix Law can provide you with more information and guidance. Contact them today. Our specialist property litigation solicitors are experienced in forcing the sale of jointly owned properties where there is a dispute over whether or not to sell or over who should receive what out of the proceeds of the sale.
Who Can Legally Force the Sale of a Jointly Owned Property?
Under English law, there are two main types of co-ownership:
Tenants in common; or
Joint tenants.
- The primary distinction is what happens to a co-owner’s share upon their death. Tenants in common will have their share passed according to their Will or intestacy laws. Joint tenants automatically pass their share to the surviving owners.
- Any coowner, whether they are a joint tenant or tenant in common, can apply to court to force the sale. However, a judge will ultimately decide whether this is allowed. A person who inherits jointly with others may disagree about how to divide the property.
How To Apply For A Court Order To Force The Sale Of A Property
You need to speak to a lawyer before you proceed with your claim. They can advise you on the likelihood of a successful outcome and prevent you from wasting money and time if you choose the wrong approach. Issuing a claim incorrectly can lead to wasted costs, but broadly, if you need to issue a claim, the next steps will include the following:
Drafting the Claim Form correctly and with detailed particulars of the claim sets out your rights, what you seek, and why. You can choose between Claim Forms N208 and N1. You will need to provide your personal details, those of the other parties, and a detailed description of the issues. This is known as the Particulars of Claim. These documents are important because they not only present the facts and laws, but also try to persuade. If you need to amend or change your claim or Particulars later, you will first need the court’s permission. This may not be granted. If you are granted permission, it is usually on the condition that you pay for the costs incurred by your amendment, such as the cost to the other party of having to rewrite their defence. Getting this right is incredibly important.
Gather the necessary evidence to support your position, including documents and correspondence. If you complete Claim Form N208, then you must also provide a witness statement.
Issue the claim. Send your documents to the County Court or High Court nearest you, depending on the value and complexity of the case. Pay the court fee.
- The court issues your claim, serves copies to the other party, and lists a first hearing for directions and a timeline of the case’s administration.
- How courts determine the need to force a property sale
- There is three statutes that a joint owner may rely on.
- The Married Women’s Property Act 1882
The 1973 Act relates to divorce proceedings and 1996 Act relates to unmarried coowners. Helix Law don’t deal with family disputes and divorce and so we cannot help where there is a property dispute in the context of a divorce.
Where a dispute relates to matrimonial proceedings, a judge will consider the welfare of any children, each party’s financial needs and resources, and how long they were married. When a court examines an application under TOLATA it first examines the legal titles. The court starts by assuming that each party has an equal interest based on the title documents. Therefore, if the official register states that you co-own a house, the initial presumption is that you own an equal share.
However, the register may not name you as a legal owner, or you may wish to show you’re entitled to a greater share due to your contributions or discussions with your joint owners. In this case, the judge will look at whether the following exists:
- An expressed declaration, where parties confirm in writing what proportion of property they each own. This document, called a “Declaration of Trust”, is useful in situations where parties do not contribute equally to the purchase price.
- A “constructive trust” is created when parties agree to hold the property in certain ways without signing a Declaration of Trust. The claimant will have to show that they relied on the understanding and suffered harm as a result. When determining whether there is a trust, the court will take into account any other written agreements as well as the conduct of the parties.
- A trust is created by contributions. Contributions are most often financial, as when one party pays the entire deposit. Depending on the facts of the case, the court might also consider other payments that were made to the household.
The majority owner has a better chance of winning a case or forcing a sale. The court will also consider the intentions of each party when they bought, and why they bought it (e.g. If the property is a home or a business, the court will also consider the children who may live there and any creditors that the parties owe. If you own a part of a property, but the land registry entry does not reflect that, you run a greater risk of losing your asset. Simply put, your share in the property could be sold and you may not receive notice. This type of risk may lead to a need for an application for an injunction to protect your position.
Do Courts Always Grant Orders to Force the Sale of a Property?
There are no guarantees in litigation, and the judge will strive to achieve a fair outcome based on the facts and relevant law, so a robust claim is vital to maximise your chances of succeeding. We can force the sale of jointly owned properties, in part because you would lose your financial value in the property.
What are the 5 court orders that can force a sale?
- Refuse sale
- A judge can refuse the claim due to various reasons such as lack of equity in the property, or if selling the property would unfairly disadvantage a party.
- Refuse sale but regulate the right to occupy
The judge can refuse the claim, but issue an order regulating the use of the premises by the parties. If it is more practical for a party to leave, then the person who lives there must pay rent.
Order of Sale
An Order for Sale is usually granted when there is enough equity and the judge deems it fair. The order outlines how the parties plan to market and sell the property.
Delayed Sale Order
The order may be granted by the judge, but the sale can be delayed until a later time. For example, when the resident children turn 18. This order is only issued in exceptional circumstances. It involves dividing the property into different parts so that each party has their own part.
Who pays the legal fees in forced property sale?
The party making the claim is usually responsible for the court fee, but they can ask the court to split the cost. The court can order a party who is unreasonable or obstructive to pay the additional costs that the other party has incurred due to their poor behavior. Costs are always at the court’s discretion. Our instruction is designed to make you appear reasonable and proportionate in your legal costs and those that you seek to recover. We can recover up to 95% of your legal costs. Parties usually split conveyancing fees equally.
Need Advice? Contact Helix Law.
Resolving disputes over jointly owned property is a complex legal process. We have a property litigation team that acts nationally in these types disputes. Contact Helix Law’s expert property litigation team today for more information and to explore your options. We have the expertise and knowledge to provide you with tailored advice that will protect and improve your situation.
