My bf was in a relationship several years ago, during which time he purchased a house with his then partner. The relationship ended and a signed agreement was drawn up stating that when/if he co-habitated for a period of 6 months the house would be sold or an agreed amount would be paid to his ex.
That time has now come and we are not in a position to re mortgage so inevitably the house will have to be sold. We have had a solicitors letter asking for payment or proposals for settlement within a reasonable period of time, or his ex partner will apply to the court for an order of sale and possession of the property . We duely replied stating that the property would be put on the market.
If the house is for sale anyway what does it mean to apply to the court for order of sale and possession?
I assume that all the parties involved are not married and what I say is on that assumption.
It is one thing to sell the property but if that were to happen, who gets what and how are the proceeds to be split ?
Because if you haven''t agreed that, you could have problems when the house eventually sells and you can''t agree on the division of the proceeds.
As you say if the house is for sale anyway then applying for an order for sale makes little sense, save only that it would mean you could not withdraw the property from the market.
If a cohabiting couple buy property jointly, they have the freedom to make it clear whether they own in equal shares or in some other proportion.
As a general rule of thumb :
• Where one party is the sole owner of the property, the starting point is exactly that – the owner has 100% rights;
• Where the property is jointly owned the starting point is that the parties own in equal shares.
• If the deeds say that one party owns, say 75% and the other 25% then that is what their shares will be.
• If either party wishes to displace these basic rules the onus is on him/her to demonstrate why.
This is usually achieved by establishing contributions, for example, providing part of the initial deposit, helping with the mortgage, improving the property and so on – but not contributing to household expenses.
So, for example, in Kernott v Jones, the property that was the subject of the dispute started out by being owned jointly. But the Supreme Court decided that Ms Jones was entitled to 90%. The facts of this case were, almost certainly, not typical. But it demonstrates that it can be done. The above is a very condensed summary of a very complicated and involved subject and in all cases, legal advice is necessary.