Can I force the sale of a jointly owned property?

05/10/2018

Do you need help to force the sale of a jointly owned property?

Our solicitors specialise in helping joint owners sell their home and we can help with:
  • Deed of Trusts for setting out your intentions in a property with a joint owner
  • Mediation with joint owners
  • Applications for a court order for sale
* No time for forms? Call us now on 0333 344 3234 (local call charges apply)
Where a property or land is co-owned if one of the legal owners wishes to sell and the other doesn't then an application can be made to court to obtain an order for sale. When applying for an order for sale the courts can award the following orders:
  • refuse a sale
  • refuse a sale but make an order regulating the right to occupy the property
  • order a sale
  • order a sale but suspend the order for a short period; and
  • partition the co-owned property (only awarded in exceptional cases)
With a number of outcomes available to the court any application should consider the facts that the courts use to to make an order under section 15 of Trusts of Land and Appointment of Trustees Act 1996. This means that where one legal owner wants to sell they can look to force a house sale through the courts, however there is no guarantee you'll obtain an order for sale and the legal costs can be expensive. Joint owners often look to mediation before going to court or agree their intentions within a deed of trust (this can be drafted after you have purchased).

What facts are relevant in determining applications for sale?

Section 15 of Trusts of Land and Appointment of Trustees Act 1996: The matters to which the court is to have regard in determining an application for an order under section 14 include:
  • the intentions of the person or persons (if any) who created the trust;
  • the purposes for which the property subject to the trust is held;
  • the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home; and
  • the interests of any secured creditor of any beneficiary.
Intentions may change over time, either by mutual agreement or through your action or circumstances, so the courts will also consider whether the intentions agreed at the outset are still the same now when requesting an order for sale. An example of changing intentions could be where parents buy a home together to raise their family, however the children move out. The home is no longer the family home it is the home for just the parents and the intentions have now changed from having a home for the whole family and instead it is just for the parents.

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How do you prove the original intentions of the legal owners?

When property is co-owned the joints owners will have agreed between them intentions for the property. For example:
  • Family Home - a husband and wife buy a home as their main residence to have children in. The purpose is to provide a home for their family and their intention is to live in the property for an indefinite period of time.
  • Matrimonial Home - a husband and wife buy a home as their main residence to live in whilst married. The purpose is to provide a home for them to live in and benefit from together and their intention is to live in the property whilst they are married together.
  • Pre-Marital Home - a young couple buy a property with a view to keep their ownership separate and sell the property in the future. The purpose is to have a mutual benefit of living in the property and the intention is to live in the property for a short period of time with a view to sell or to make the property their matrimonial home in the future.
  • Investment - investors buying a property as a buy to let. The purpose is to buy a property, not to live in, but to have tenants with the intention to make a financial gain for a period of time.
Relationships and intentions can change over the lifetime of the property ownership. It is advisable for joint owners to set out their intentions within a deed of trust when buying a property so that they can agree what they are and confirm how they wish the co-ownership to come to an end if their relationship should change.

    1

    Refuse a sale

When considering an order for sale the courts take into consideration the factors listed in Section 15 of Trusts of Land and Appointments of Trustees Act 1996 (s15 TOLATA 1996). For example, if the intentions of the joint owners were to use the property as their residential home to raise their children, then the courts will take this into consideration if one of the joint owners applies for an order of sale. It may be the case the courts refuse the sale as the original agreement at the time of purchase would be to live in the property as a family home. This could, however, be countered if the joint owners set out their intentions in a deed of trust stating their intentions for the property as an investment to allow either party to agree a sale at a future date with or without the consent of the other party.

Curtis v. Buchanan-Wollaston 1939

Four owners of separate properties decided to jointly buy the land in front of their properties so that they could protect their view of the ocean. They confirmed this intention within a deed of covenant where they agreed no single person could sell the jointly owned land without first obtaining consent from all of the joint owners.

In this case the court held that an order of sale should be refused as the original intentions of the joint owners was to hold the land and protect their view until such a time where all of the joint owners agreed to sell the land.

    2

    Refuse a sale but make an order regulating the right to occupy the property

An order for sale can be refused, however the courts may award instead provisions as to the right to occupy the property such as if one party has to leave then the remaining joint owner has to pay them rent. This type of order is often seen where:
  • it is socially undesirable to order the property to be sold; and
  • it is unfair that the joint owner(s) not in occupation should be excluded from all benefits from the property (such as living in it)

Dennis v McDonald 1982

In this case the joint owners were co-habiting tenants in common with an equal share in the property. They had 5 children together however the relationship broke down because of the father's violence so the mother left the property with 2 of her children. The mother made an order for sale that was refused as the original intention for the property was to provide a home for their family. The courts did however order the father to pay an 'occupational rent' throughout the duration of his residence in the property. The rent was fixed based on half of a 'fair rent' for the property.

    3

    Order a sale

An order for sale can be granted where:
  • the property was purchased as an investment;
  • there are a large number of co-owners and the majority wanted a sale (see s15(3) TOLATA 1996); or
  • the purposes for which the property were purchased have failed.
An example of where the purpose has failed is where the property was purchased as a marital home and the couples relationship breaks-up and there are no children.

What happens if the majority of co-owners want to sell?

s15(3) TOLATA 1996 states: ...the matters to which the court is to have regard also include the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in property subject to the trust or (in case of dispute) of the majority (according to the value of their combined interests).

If the majority of the co-owners wish to sell then the court would normally order a sale.

Jones v Challenger 1961

In this case a couple purchased a property as their matrimonial home. There were no children and the marriage broke down with the moving out to live with another man. The wife filed for an order for sale and the courts gave the order as it was viewed the original purpose for the property was for it to be a matrimonial home. Once the marriage ended the purpose changed and both parties are no longer able to enjoy occupation of the property together and receive an equal benefit from their investment.

    4

    Order a sale but suspend the order for a short period

A court may make an order for sale but delay the order for a period of time to give a co-owner wishing to retain the property the opportunity to buy the other/s beneficial interest. The amount payable for the leaving co-owner's beneficial interest is calculated using a percentage of a fair value of the property. We offer a service to help calculate this for joint owners - for more information call 0333 344 3234 (local call charges apply).

Frequantly Asked Questions About Forcing a Sale

How much does it cost to force the sale of a house?

The costs can vary from solicitor to solicitor however here are an estimate of costs to force the sale of a house.

Description

Costs (£)

Solicitor's Legal Fee
You can make the application yourself or use a solicitor

£480 to £600 INC VAT
Solicitor's Legal Fee
You can make the application yourself or use a solicitor

£800 to £1,200 INC VAT

Court fee
The court fee for an order for sales regularly changes so click here for up to date court fees

£TBC


Can my ex force a sale of my house?

Your ex can force the sale of your property by obtaining an order for sale from the courts. As seen above, the courts decide on the various types of order based on s15 TOLATA 1996.

Does it matter whether we are joint tenants or tenants in common?

How you hold the beneficial interest on trust with your joint owners doesn't stop you from forcing the sale of a property. It will, however, affect the distribution of any income when the property sells.

What circumstances can you force a house sale?

Under most circumstances an order for sale can be obtained if the co-owners:
  • agreed within a deed of trust their intentions for selling the property
  • aren't married and their intention was to sell the property before the end of the mortgage term, or within 5 years of buying the property.
  • are married couples who purchased the property as a matrimonial home where one of the parties no longer lives at the property

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