Tenants in Common/Joint Tenants and property ownership
Discussion
Hoping for a little clarification and advice from you lovely people.
Almost 9 years ago my sister and her partner purchased a house. 4 years and two children later, their relationship came to an end and my sister's partner moved out. My sister has been trying to buy her ex out of his share of the property, the big problem is that there is confusion and big arguments over whether or not they own the property as joint tenants or tenants in common.
A couple of points (I'm not sure how key they are to this though):
- Both are listed as owners
- In terms of deposit, my sister put in 3 1/2 times what her ex did.
- There is a mortgage, both are named on it.
- The ex moved out ~5 years ago.
- The ex has not paid the mortgage since he moved out.
The big issue is what the ex is entitled to (a lot of this information I have picked up when speaking to my father, I have not been directly involved in any of this). The Land Registry document does contain the following restriction which I believe suggests they are tenants in common:
"RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court."
From my understanding this would mean they each own a share, I assume based on the amount they invested in the property. Unfortunately there doesn't seem to be any document relating to this; I believe the solicitor who handled the purchase can't find any record of it either. My sister cannot find it and the ex is denying it ever existed.
Because of this it seems their ownership is currently being treated as joint tenants, meaning the ex would (I believe) be entitled to 50% of the property.
Is there any serious argument to be made using the restriction in the Land Reg document, or is it a completely lost cause and my sister will have to accept she does not own as much as she thought?
I would greatly appreciate some advice, I've avoided up until this point but I've recently seen how much this impacting my parents' mental health so I've decided to do my own investigating.
Almost 9 years ago my sister and her partner purchased a house. 4 years and two children later, their relationship came to an end and my sister's partner moved out. My sister has been trying to buy her ex out of his share of the property, the big problem is that there is confusion and big arguments over whether or not they own the property as joint tenants or tenants in common.
A couple of points (I'm not sure how key they are to this though):
- Both are listed as owners
- In terms of deposit, my sister put in 3 1/2 times what her ex did.
- There is a mortgage, both are named on it.
- The ex moved out ~5 years ago.
- The ex has not paid the mortgage since he moved out.
The big issue is what the ex is entitled to (a lot of this information I have picked up when speaking to my father, I have not been directly involved in any of this). The Land Registry document does contain the following restriction which I believe suggests they are tenants in common:
"RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court."
From my understanding this would mean they each own a share, I assume based on the amount they invested in the property. Unfortunately there doesn't seem to be any document relating to this; I believe the solicitor who handled the purchase can't find any record of it either. My sister cannot find it and the ex is denying it ever existed.
Because of this it seems their ownership is currently being treated as joint tenants, meaning the ex would (I believe) be entitled to 50% of the property.
Is there any serious argument to be made using the restriction in the Land Reg document, or is it a completely lost cause and my sister will have to accept she does not own as much as she thought?
I would greatly appreciate some advice, I've avoided up until this point but I've recently seen how much this impacting my parents' mental health so I've decided to do my own investigating.
Baldchap said:
Surely banking records will show the deposit payments?
Yes, I understand records of the amounts out in are obtainable.I was of the understanding that an official document (that goes with the land reg) detailing the fact they are tenants in common is required. This is what she cannot find and is trying to find out if there is enough evidence to show tenants in common without it.
How to find out if you are Joint Tenants or Tenants in Common? Download your title deeds from the Land Registry and if there is a Form A restriction under Section B: Charges, then you are tenants in common. If the restriction isn't there then you are Joint Tenants
Is the restriction you mention as above? (Form A section B)
Is the restriction you mention as above? (Form A section B)
I recall from my most recent house purchase that this was discussion we had with our Solicitor when signing all the paperwork over how the ownership should be recorded with the land registry.
It should be recorded within the conveyancing paperwork if the Solicitor can't find a record of it then it would indicate that no such thing exists but things do get lost so last point of call will be land registry.
I think producing a bank statement showing who paid the deposit amounts won't really assist if the base is that they are setup for a 50/50 split.
I would guess when they were making the purchase they were loved up and maybe didn't consider what would happen if they split.
It should be recorded within the conveyancing paperwork if the Solicitor can't find a record of it then it would indicate that no such thing exists but things do get lost so last point of call will be land registry.
I think producing a bank statement showing who paid the deposit amounts won't really assist if the base is that they are setup for a 50/50 split.
I would guess when they were making the purchase they were loved up and maybe didn't consider what would happen if they split.
The restriction on the title prevents one person selling the property - this suggests joint tenants because if they were tenants in common then one person can indeed force the sale.
Assuming joint tenants - is the ex willing to accept a property valuation as per 5 years ago? Bearing in mind he has failed in his joint tenant obligation to pay the mortgage (assuming there are no other factors to consider as to why he shouldn’t have paid it).
Assuming joint tenants - is the ex willing to accept a property valuation as per 5 years ago? Bearing in mind he has failed in his joint tenant obligation to pay the mortgage (assuming there are no other factors to consider as to why he shouldn’t have paid it).
yellowtang said:
The restriction on the title prevents one person selling the property - this suggests joint tenants because if they were tenants in common then one person can indeed force the sale.
Assuming joint tenants - is the ex willing to accept a property valuation as per 5 years ago? Bearing in mind he has failed in his joint tenant obligation to pay the mortgage (assuming there are no other factors to consider as to why he shouldn’t have paid it).
This morning I've tracked down the TR1, here's a snap of section 10:Assuming joint tenants - is the ex willing to accept a property valuation as per 5 years ago? Bearing in mind he has failed in his joint tenant obligation to pay the mortgage (assuming there are no other factors to consider as to why he shouldn’t have paid it).
So there is now confirmation they did agree to Tenants in Common, but the Declaration of Trust is nowhere to be seen.
To answer your question about the ex accepting a valuation from 5 years ago, no he is not. He has had it valued this summer, believes it is worth £145,000 more than the house across the path from my sister's house, which sold a month ago (and is on 30% more land). Based on the figure he wants from the sale, that would equate to a 517% increase on what he initially put in.
With regards to the mortgage, while he doesn't pay it, I am not privy to any other factors.
scoey1001 said:
How to find out if you are Joint Tenants or Tenants in Common? Download your title deeds from the Land Registry and if there is a Form A restriction under Section B: Charges, then you are tenants in common. If the restriction isn't there then you are Joint Tenants
Is the restriction you mention as above? (Form A section B)
Yes, based on the first Google result which shows:Is the restriction you mention as above? (Form A section B)
The Register for their property shows:
As in my previous post from a few minutes ago, it just seems to be the declaration of trust that is missing.
With both the TR1 and Register showing they are tenants in common (but with the declaration of trust nowhere to be found), would this be enough if it were to go to solicitors or even court to have the property value divided as per initial investment (and other factors to be considered) rather than a straight split (possibly) down the middle?
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