Declaration of Trust

My daughter has broken up with her partner and wants to buy his share of the mortgage to the flat they bought together with equal shares about a year ago. They have gone exactly halves on everything including mortgage. She wants to buy his half of the flat but he cannot agree on the value. She is using her pre-emption rights and has appointed a RICS Expert Witness valuer - she is following Declaration of Trust agreement which both have signed. Her ex partner doesn''t want to agree with RICS valuation and expects her to pay considerably more if she wants to buy him out. I wonder how this would be dealt with by the courts if it has to go there? Can the court force him to sell his half of the mortgage at the Expert Witness valuation even if he decides he won''t sell unless my daughter pays his ''pie in the sky'' valuation figure?

Suggest your daughter joins and asks relevant questions, she would need to provide details of the terms of the declaration of trust deed.

A court may order a joint valuation by an independent surveyor who would be formally instructed to provide a joint valuation if her ex does not agree her valuation. So no her ex is not bound by a sole instruction of a surveyor to value a property.

Deborah

Thanks for your reply - I will encourage my daughter to join the forum but she is having difficulty managing anything to do with her ex at the moment - hence my involvement! Her Declaration of Trust states clearly the purpose of Pre-emption rights and these have been acknowledged by her ex. The D of T also makes clear that a valuation should be carried out by RICS appointed Expert Witness. That is the point we have reached and what would be really helpful to know is that if a valuation produced by an Expert Witness were to be submitted to a court that the court could force the sale of my daughter''s ex partner''s share of the mortgage based on that valuation. Extract from Declaration of Trust ''Either of the Legal Owners may give notice to the other party of the desire to purchase the share of the other party at the current market value to be agreed or in default of agreement fixed by an independent valuer appointed by agreement or in default of agreement on the application of either of the Legal Owners to the President for the time being of the Royal Institute of Chartered Surveyors''

An important part of of what you quoted above is

"fixed by an independent valuer appointed by agreement"

The independent valuer needs to be a valuer that has been agreed between them and instructed on what is called a Joint Instruction.

So no they would not force a sale or transfer on the basis of a valuation by a RICS Surveyor if it was not undertaken by agreement and was done on a sole instruction by your daughter.

Deborah

Thanks once again for your response Deborah. I may have misunderstood you but my daughter was hoping that the statement ''or in default of an agreement on application of either of the Legal Owners to the President for the time being of the RICS'' I have checked through correspondence between myself on behalf of my daughter and the ex partner and it is quite clear he was prepared to accept a valuation at current market value. When that valuation was carried out by a RICS surveyor it was rejected in favour of just one estate agents very speculative valuation. I checked myself with a number of agents in the area and all came up with sale values much closer to the RICS valuation!

It may be simpler if I try to explain the Court Application which is under the Trusts of Land and Appointment of Trustees Act for an Application for Sale of the Property, if they were not married. If married the Application and law is different!

Often when co-owners cannot agree on the division of the sale proceeds or the amount to be paid on a transfer where there is a declaration of trust it is because they cannot agree the value of the property and from reading your post this is the situation with your daughter.

So what normally happens is that the court ask the co-owners to agree on ONE RICS surveyor who is instructed on a JOINT instruction basis so there can be no bias. Normally when this is done both parties agree on the following valuation. Where there is only one valuation even by a RICS surveyor, and the other party won''t agree the valuation, the court will more than likely order another valuation by a RICS surveyor on joint instruction, meaning your daughter and co-owner need to agree the actual surveyor who does the valuation, if they can''t agree on the actual surveyor the Court can decide.

I cannot comment upon the pre emptive rights to refer the matter to the President of RICS. I would check this out carefully, I believe it the route of arbitration route for the President to arbitrate on value, but check whether this can be done on a sole instruction of a surveyor, rather than a joint agreed instruction.

Hope this now makes sense.

Deborah