Can a Jointly Owned Property Be Sold by One Owner?
02/12/2022
(Last Updated: 30/11/2023)
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11 min read
Where a property or land is co-owned, if one of the legal owners wishes to sell and the other can't buy them out and won't agree to sell & cash-out, then an application can be made to court to obtain an order for sale.
This means that joint ownership of property with children makes getting a court order to force sale of property much harder, at least until the youngest child reaches the age of 18
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 when parents buy a home together to raise their family, however, the children move out. The home is no longer the family home, but a home for just the parents and the intentions have now changed.
With several outcomes available to the court, any application should consider the facts that the courts use 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.
Where an order of sale is granted, then you may still face a legal battle in proving how much money you are due from the property. Read more about Joint Property Ownership Disputes.
It may be the case that the courts refuse the sale because the original agreement at the time of purchase was 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.
In this case, the court held that an order of sale should be refused, as the original intention of the joint owners was to hold the land and protect their view until such a time when all of the joint owners agreed to sell the land.
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.
If the majority of the co-owners wish to sell, then the court would normally order a sale. This doesn't help where there are only 2 legal owners, however if there are 3 and 2 want to sell, then the majority should win the order for sale. In such cases, the parties would save money on legal and court fees if the party who doesn't want to sell changed their position.
Forcing a sale of a jointly owned property
When applying for an order for sale to force sale of house, 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)
Can I force the sale of a jointly owned property?
You can only force the sale against a co-owner's wishes if the court makes an order for sale. According to 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.
This means that joint ownership of property with children makes getting a court order to force sale of property much harder, at least until the youngest child reaches the age of 18
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 when parents buy a home together to raise their family, however, the children move out. The home is no longer the family home, but a home for just the parents and the intentions have now changed.
With several outcomes available to the court, any application should consider the facts that the courts use 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.
Where an order of sale is granted, then you may still face a legal battle in proving how much money you are due from the property. Read more about Joint Property Ownership Disputes.
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The main 4 ways a court can order
- 1
Refuse a sale
It may be the case that the courts refuse the sale because the original agreement at the time of purchase was 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 intention of the joint owners was to hold the land and protect their view until such a time when 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
- it is socially undesirable to order the property to be sold; and
- it is unfair that the joint owner(s) not in occupation (not living at the address) should be excluded from all benefits from the property
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 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.How do you prove the original intentions of the legal owners?
When a property is co-owned, the joint owners will have agreed between them the 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 buys 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.
- 3
Order a sale
- the property was purchased as an investment;
- there is a large number of co-owners and the majority wanted a sale (see s15(3) TOLATA 1996); or
- the purposes for which the property was purchased have failed.
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. The wife moved out to live with another man and filed for an order for sale. The courts gave the order, as it was viewed that the original purpose for the property was for it to be a matrimonial home. Once the marriage ended, the purpose changed and both parties were no longer able to enjoy occupation of the property together and receive an equal benefit from their investment.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. This doesn't help where there are only 2 legal owners, however if there are 3 and 2 want to sell, then the majority should win the order for sale. In such cases, the parties would save money on legal and court fees if the party who doesn't want to sell changed their position.
- 4
Order a sale but suspend the order for a short period
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Written by:
Andrew Boast
Andrew started his career in 2000 working within conveyancing solicitor firms and grew hands on knowledge of a wide variety of conveyancing challenges and solutions. After helping in excess of 50,000 clients in his career, he uses all this experience within his article writing for SAM, mainstream media and his self published book How to Buy a House Without Killing Anyone.
Reviewed by:
Caragh Bailey
Caragh is an excellent writer in her own right as well as an accomplished copy editor for both fiction and non-fiction books, news articles and editorials. She has written extensively for SAM for a variety of conveyancing, survey and mortgage related articles.
