How to Sell a House if one Partner Refuses to do so

Selling a house can be a complex and challenging process, but it becomes even more complicated when one partner refuses to sell. Whether you are going through a divorce, separation, or simply cannot agree on the sale of your home, it can be a frustrating and emotional experience. In this blog post, we will provide you with some practical advice on how to sell a house if one partner refuses.

We will cover the legal options available to you, how to negotiate with your partner, and what to do if you cannot reach an agreement. So, whether you are looking to move on or simply want to resolve a difficult situation, keep reading to find out how to sell your house with or without the cooperation of your partner.

There are broadly, for scenarios which covers a majority of individual circumstances when owning a property. You could be married or in a civil partnership, you could be joint tenants, you could be co-habiting or you could be tenants in common. We will look at what your options are under these circumstances and we will also attempt to detail scenarios where you are in occupation of a property but not legally named on the title deeds. It is however worth noting that the purpose of this article is to provide an overview of what options are available under each of these scenarios and not to act as legal advice. You must seek independent legal advice from someone experienced in handling family and dispute matters, specific to your circumstances.

So, back to the question of how to sell a house if one partner refuses to do so?

Married or Civil Partnership

In England and Wales, being married or in a civil partnership means that two people have entered into a legally recognised and binding relationship with each other. Marriage and civil partnership are two separate legal statuses, but they are similar in that they both offer legal rights and protections to the parties involved. The ceremony is conducted by a person who has been authorised to do so within the particular district in which the marriage is taking place. As part of formalities, the marriage is then recorded within a marriage register.

Where you are married or in a civil partnership, even in the instance where the property is owned by one party, the other party cannot be forced to vacate. Consent must therefore be sought prior to a sale. If the property is sold foregoing this step, the party not named on the title deeds can continue to live at the property as their right to do so is automatic.

If you are the non-legal owner, and in the spirit of balance, it is important to remember that although you have an automatic right to occupy the property, any financial claims are not automatic. It is not the purpose of this article nor our expertise to set out the options available to such a party. You must therefore seek advice from a Family Solicitor in this regard.

If you are the legal owner of the property in question, the obvious solution here is to try and negotiate with your spouse or civil partner. We recognise that you may have already explored this option however if the relationship has broken down acrimoniously to the point where an attempt to engage with your spouse or civil partner has not yet taken place, this route is still well worth considering. If you are not prepared to communicate directly with your partner, mediation would be a good alternate option to consider.

Once you have fully exhausted the above process and have failed to reach an agreement, then you could apply to the courts for an Order for Sale.

The statutory law from which the Order of Sale derives from is through sections 14 and 15 of the Trusts of Land and Appointment of Trustees Act 1996.

The Courts will ultimately hold the discretion to grant the Order however this process can be costly and drastically dimmish the equity from the property sale. Realising the drawbacks between parties generally act as the incentive for parties to come to a settlement before commencing court proceedings.

Typically, it is common to see the need to sell the property as a result of an irreversible breakdown of a relationship. Therefore, the property sale and will form part of divorce proceedings and therefore, a need for an express Order for Sale might not arise.

You will also have to consider external factors (in this context) which could prevent the Courts from ordering the sale of the matrimonial home. Do any children involved in the marriage have anywhere to live if the sale goes ahead? Is each party able to afford to acquire a suitable property in the event there isn’t sufficient equity from the property, so on and so forth. These matters could lead to the Order being either prohibiting the sale of the property or alternatively postponing a sale, for example, until any children reach the age of 18 where an order has been granted.

If on the other hand, you are not looking to sell the property but instead, remove a spouse or civil partner from the property, you must apply to the Courts for an Exclusion Order.

An exclusion order suspends a married person’s right to occupy a property. This Order does not revoke either party’s legal or equitable ownership of the property. The Courts will grant this type of Order where has been, or there is threatened, physical or emotional abuse. You can find more details here.

Forcing the sale of a jointly owned property.

Before we discuss how to deal with property on separation where you hold the property as joint tenants, it is worth recapping as to what joint tenants are.

Joint tenancy, in the context of property ownership, is when two or more individuals jointly own a property. Each tenant has an equal share and equal say in the property together with the right to occupy and use the entire property.

One key feature of joint tenancy is the right of survivorship. This means that when one joint tenant dies, their share in the property automatically passes to the surviving joint tenant(s). This is in contrast to tenancy in common, another type of co-ownership, where each tenant has a distinct share in the property that they can dispose of through their will or other legal means. Joint tenancy can also simplify the transfer of property after death, as the property can pass to the surviving owner(s) without the need for probate.

The rules surrounding the removal of a party from the property (where a sale isn’t the object) is by obtaining an exclusion order and is identical as explained above.

Assuming your negotiations have failed to reach an agreement with regards to the sale of a jointly owned property, you need to apply for the courts for an Order in lieu of the other joint owner’s consent.

You could expect the order to the one of five broad categories. These are as follows –

• The Order to refuse the sale
• The Order refusing the sale however with conditions attached on the occupancy of the property
• Order for Sale
• A Postponed Order for Sale
• Partitioning the Property (this is a very rare outcome)

As above, all of these Orders will derive by basing the Order on Tests carried out against Sections 14 and 15 of Trusts of Land and Appointment of Trustees Act 1996.

What are the rules surrounding a contested sale, when you are cohabiting?

If you are co-habiting and you are not a legal owner, you cannot be forced out of the property however, confusingly, your right to occupy the property is not automatic as with married couples. You must therefore apply to the courts for relief if you are aware that this is going to happen. The Courts will grant you a Right to Occupy Consent Order depending on the merits of the claim.

Once granted, the Right to Occupy is only valid for 6 months and you will be required to apply for extensions if you require more time. The Courts however will also consider the legal owners counter claims to refuse an extension on the basis of the property being sold as unlike married couples, you do not have protection allowing the property sale to be stopped.

Conclusion

So, in conclusion, there are a number of options available, if you find yourself in a situation where you are asking, how to sell a house if one partner refuses to do so? The first step is to seek advice from appropriately qualified and experienced professionals who can guide you through the process.