My partner is currently in the process of a tolata claim to force the sale of the house he co owns with his his ex. She has issued a counter claim for all of the equity and to keep the house until youngest child is 18 under schedule 1 children's act. Please see below basic facts of what's been going on:
- my partner and his ex bought a property on the help to buy scheme 2 years ago, they split and he moved out 6 months later
- we are currently renting as he is on the help to buy we cannot purchase another property
- as above, he has applied for forced sale based on tolata she responded with schedule 1 children's act requesting a transfer of property and equitable accounting based on a sale when the youngest turns 18
- two minors in the property - 8 year old boy who is my partners ans teenage son who is not
- she has recently defaulted on the mortgage on numerous occasions due to maintenance being reduced by CSA due to partner having pension changes
- my partner covered the mortgage and also was the main earner during their relationship meaning he paid the deposit etc although the house deeds and mortgage are 50/50
- she is saying she cannot afford to rehouse as she only works 4 hours a day and relies on maintenance payment and tax credits
- if house sold they'd receive approx £40k equity each
- house is bigger than hers/children needs
Do you think she is likely to win? My partner can barely afford to house himself with the rent he is paying and maintenance let alone step in when mortgage isn't paid. Also being help to buy means that in the future he couldn't buy a property as it is prohibited as part of help to buy agreement. Also, in 2 years the help to buy will start to accrue interest that will cost approx £150 monthly on top of the mortgage.
Any advice or guidance would be massively appreciated - thanks
Where parties are unmarried, the Court does not have powers to re-distribute, as it does on divorce. There are some who think that a
Court should have such powers ; as far as I am concerned that is a
matter for Parliament.
As far as a Tolata claim is concerned, the Courts have, over time, tried to find ways round this ' difficulty '. These include doctrines with weird names like proprietary estoppel and resulting and constructive trusts.
Yes, I know, please speak in plain English.
I'd say there was a good chance that the child would be allowed to
remain in the house until (s)he is 18. The Courts can do that either by
making an order for sale but delaying it until the child attains majority,
or by making an order under the Children Act.
I don't pretend to be an expert on the Children Act and how the Courts interpret it. I'd be inclined to think that it is a distinct possibility that the Courts would allow the child to live there until majority.
But I don't think the Children Act was intended to achieve
redistribution between unmarried parents through the back door.
As regards Tolata, a solicitor would look at the title documents and try and ascertain whether they throw any light as to ownership.
They might, for example, say that John owns 60% and Jane 40%, or whatever.
In the absence of any provision, it's likely to assume that the
property is held in equal shares. Or if, as in the previous paragraph, the title documents were more specific, then the
Courts would assume a 60/40 split unless either of the parties
can show that (s)he is entitled to more then 60%. In the case
of Jones v Kernott, the parties originally held the property in equal shares but on appeal the ' wife ' got 90%. The facts of this case were not common, but that's the principle.
I'd say that the Court would be likely to allow the child to stay in the house until majority. But I doubt whether the Courts could use the Children Act to achieve redistribution through the back door.
I must stress, I am talking in very general terms. You absolutely
must see a solicitor, and that solicitor should needs to be a
specialist in property law. This is not divorce law. The Law
Society may be able to suggest a solicitor who specialises in this field.
There is no doubt that the Court has power to delay a sale under TOLATA. That might be to give the parties a breathing space to look
for other accommodation, for example.
I have been retired from the legal profession for a long time. I hesitate to give advice unless I'm pretty sure I'm right.
One thing I can be sure of is that repossession is something to be avoided at all costs. If this woman and your partner are co-owners,
and if there is a default on making the mortgage payments, then the issue of a voluntary sale, or a sale pursuant to a Court order, is almost certainly irrelevant as the lender will force a sale. They won't care who was responsible for the default ; they are
just interested in recovering their money. And the chances are that your partner and the OW are ' jointly and severally liable ' which in
plain English means the lender can sue either of them, or both.
To say nothing of the fact that repossession will probably be entered in the register of county court judgments and that will not be good for his credit or hers for that matter.
If your partner is forced to pay the mortgage to avoid re-possession, that could , or should, be an argument for a larger share of the equity..
If your partner's ex has the benefit of occupation, she should expect to pay for it, or at least make a contribution.
It is complications like these which suggest to me that you need to take advice. I have been retired too long even to attempt it.
If your ex has defaulted on the mortgage on numerous occasions then this is affecting your partner's credit rating. If a continuation of these defaults mean that the house is in danger of being repossessed then this will also affect his share of the equity.
Both factors are good arguments for you pursuing the sale of the property.
Does your partner have a copy of the title deeds. If not get a copy to see if his ex has accrued any charges on her beneficial share of the property? He can obtain a copy online for £3.
Your ex will have at least £40,000 in equity to rent elsewhere taking into account their son's welfare. When that money is depleted then she will be able to seek financial assistance if she is unemployed ie housing benefit.