Disputes over who owns a property

Arguments about who owns a property, and in what shares, mostly come up between people who didn’t expect to fall out, such as unmarried couples who’ve separated, parents who helped a child to buy, or brothers and sisters who’ve inherited a house together. The legal answer depends on what the paperwork says and, where it says nothing, on what the parties intended and paid.

I don’t act on these disputes myself. They’re mostly referred to my Nexa Law colleagues Louise Sackey or Andrew King, and sometimes to others at Nexa depending on what the case needs and who has capacity. If you send me the details I’ll make the introduction, and the colleague who takes it on will act for you and quote their own fee. There’s more about my Nexa colleagues here.

Who owns the house?

The first thing to look at is how the property is held. Co-owners are either joint tenants, who own the whole together, or tenants in common, who each have a distinct share that need not be equal.

If there’s a written declaration of trust setting out the shares, whether in the transfer when you bought or in a separate deed, that is very hard to go behind. It will normally be decisive unless there was fraud or a mistake, or you’ve expressly agreed something different since.

If nothing was written down, the court has to work out what the parties intended. Where the property is in joint names the starting point is equal shares, and the person saying otherwise has to prove it. The court looks at the whole course of dealing, including who paid the deposit, who paid the mortgage, who paid for the extension, what was said at the time and what the conveyancing file shows. These cases depend heavily on the documents and on whose evidence the judge believes, so the outcome is hard to predict and most of them settle.

It’s worth knowing that this is property law and not family law. Married couples and civil partners who divorce have the family court’s wide powers to share assets fairly, but unmarried couples don’t, however long they’ve lived together, and there’s no such thing in law as a “common law” husband or wife.

What if one co-owner wants to sell and the other doesn’t?

The Trusts of Land and Appointment of Trustees Act 1996, which lawyers shorten to TOLATA, lets anyone with an interest in the property apply to the court. Under section 14 the court can declare the size of each person’s share and can make orders about what the owners must do, which includes ordering a sale. In deciding, it has to consider the matters in section 15, which are what the people who bought the property intended, the purpose it was bought for, the welfare of any child living there, and the interests of any secured creditor.

In practice the options are that one of you buys the other out at a proper valuation, or the property is sold and the proceeds divided after the mortgage is repaid. A court claim is the way of getting to one of those where you can’t agree between you, and the court expects a letter of claim and a real attempt to settle first.

My name’s not on the property but I paid towards it

You may still have a share. If you contributed to the purchase price, the legal owner may hold part of the property on a resulting trust for you. If there was an agreement or understanding that you’d have a share, and you relied on it to your cost (by paying the mortgage or funding building work, for example), the court may find a constructive trust. The argument is often about whether the money was a contribution, a loan or a gift, and if you signed a “gifted deposit” letter for the mortgage lender then the other side is likely to rely on it.

What if one co-owner dies?

If the property was held as joint tenants, the survivor automatically owns all of it, whatever the will says. If it was held as tenants in common, the share of the person who died passes under their will or the intestacy rules. That can leave a surviving partner co-owning their home with step-children or other relatives, who could apply for a sale. This is usually resolved by a buy-out of the estate’s share or an agreed sale, and sometimes by a claim against the estate, which is covered on the contested probate page.

What it costs

My colleagues set their own fees, so I won’t quote for them here. A fully contested claim does cost a lot relative to the value of an ordinary house, which is another reason why these disputes usually settle. It’s worth checking whether you have legal expenses insurance on your home policy before you start.

What to send

• The Land Registry title register (a few pounds from the Land Registry’s website)
• Any declaration of trust, and the transfer document from the purchase if you have it
• A short account of who paid what, with bank statements or other evidence where you have it
• Any will or grant of probate, if someone has died

Next steps

Send me the details and I’ll put you in touch with the right colleague. I’m in Leicester, and they act for clients throughout England and Wales.