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Tenants in common

  • ivanago
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12 Jun 12 #336364 by ivanago
Topic started by ivanago
My ex partner and I are splitting,we are tenants in common.we have lived together for 12 years
Although our home was originally his I have put a large amount of money in and we have always shared bill,mortgage etc via joint bank account .
However he has always earnt a much larger salary.
I have started court proceedings against him as he doesn''t want mme to have much,however I do need to house myself and two children.
He has offered 40% of equity after mortgage cost.this is providing we don''t go to court.
My question is should I accept this or carry on with an expensive court case in order to hopefully get 50%

  • LittleMrMike
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13 Jun 12 #336382 by LittleMrMike
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May I assume, from what you say, that you are not married, just cohabiting ? What I am going to say is on this assumption. If I am not correct you need to come back for further advice.
If you go to a solicitor, the first thing (s)he would do is to look at the deeds. You say you are tenants in common. The title deeds should tell you what your respective shares in the property are.
On the face of it, if the deeds say you are joint owners ( 50% each ) then the legal assumption is that you own equally. If it says that he owns, say, 75%, then the assumption is just that. If either of you wishes to say that the shares are any different, then it is up to you ( or him ) to prove that this is so. Over time the Courts have developed a series of complex doctrines with funny sounding names like constructive trusts, which I won''t bore you with, but it''s complicated, or can be, and therefore expensive. Not knowing what the difference is between 40 and 50% of the equity, I can''t advise , but it might be a case of the bird in the hand being worth two in the bush.
But I suspect, reading between the lines, that you have another option. If I am right, he will have to use the Trusts of Land and Appointment of Trustees Act 1996 ( usually called TOLATA ) to force a sale. If you have dependent children, then the Court is likely to order a sale, but defer it until the children reach majority.
I suspect your partner will have had this kind of advice and is offering you more than he thinks you''re entitled to ( whether he is right or wrong ) because 40% now might be better from his point of view than a higher percentage knowing that he will have to wait for it.
From your point of view it could be the reverse. You may be able to keep the house for some time but get a lower share when you have to sell. But I suspect that there is a fair chance that your share could be half.
As you will have gathered, I am going on hunch here ; but hunch is no basis for this kind of decision. You need legal advice and you need it from a a family lawyer who is aware of the issues and can advise with more certainty ; but this branch of the law is not renowned for its certainty.
LMM

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14 Jun 12 #336773 by ivanago
Reply from ivanago
Thankyou so much for your knowledgable reply.Yes you are right in assuming that we are unmarried.I hadnt really considered staying in the home as it is large and expensive to maintain,however the overall share may be better in 6 years time when my youngest is 18.
The diference in 40-50% could be as much as 45000 at the moment which would make quite a big difference to me as I do not have a large mortgage capacity.I am happy to move to something smaller and more mangable.
We are tenants in common on the deeds,but he is trying to say that it was never his intention that we hold equal shares.This is not written on the deeds or indeed anywhere.
I have taken legal advice and it looks like the only option is to go to court which I am very frightened of.I have already spent quite a bit of money on solicitors bills and hear horror stories of it costing thousands through the legal system,which is money that I do not have.
Thanks once agian for your reply

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