Possession is 9 tenths of the law

When a client comes in wanting to sell a property (and naturally wanting us to do the Conveyancing), it’s reasonable for us to assume that they own that property.  You, as the seller, may assume that too.  However sometimes it’s not that straightforward.  There are a number of situations that can arise that can make a sale more complicated in terms of ownership because, for example, someone’s shared ownership of a property isn’t recorded at the land registry, or their rights arose after the property was purchased.

Most commonly people who own property jointly with others such as their spouse, partner or a family member will have their ownership recorded at the land registry.  This is fine, but we will need to be certain that all of the owners agree to the sale, so we will need to liaise with them as well as you, to get information or have them sign all the paperwork.

It does sometimes happen that joint owners don’t agree on the sale. People are often surprised to learn that the owner who wants to sell takes priority over anyone who doesn’t agree to the sale.  The one who doesn’t want to sell might argue that the property was purchased for a specific purpose, such as for an investment, and that until that aim is achieved, they shouldn’t have to sell the property.  However, the legal position is that even if only one person out of a group wants to sell, they can force other owners to sell against their will.  Even so, this can be messy and could mean you need a court order confirming the terms of the sale, such as the price and what is to happen to the proceeds of sale and that can take a while and will incur additional costs.  If you do co own property, and you are not sure whether the other owner(s) will agree to the sale, it’s best to talk to us before you put the property on the market as there is work that would need to be done before the sale could go through.

Sometimes we have to deal with sales where one of the owners has disappeared.  Fortunately this isn’t a common occurrence, and it’s a lot easier to find missing people than it used to be.  Nevertheless, unless we have instructions from all of the owners to sell the property, we will need a court order to sign the paperwork on behalf of someone who is missing.  To make such an application, we’d need to show that we had taken all reasonable steps to find the missing person, so the more information you can give us about the other owner(s) the better.

It sometimes happens that a husband and wife buy a property, but it’s only in the husband’s name.  As they are married, the wife will automatically have an interest in the property, but her name won’t appear on the title deeds.  If we are acting for the husband, we will ask him to confirm whether there are any other adults living at the property.  When we become aware of the wife, we’ll be able to give advice to the husband on his rights and obligations where she is concerned.  It may, however, be that it’s the wife who approaches us, wanting to know what her rights are, especially if she is considering leaving her husband.   Although we don’t do family law, our starting point would be to advise her on what steps she can take to protect her position whilst her divorce is put into effect.  This might include putting a caution or restriction against the property, to make sure her husband can’t sell it without her being aware of it.  This can be particularly important if the wife is moving out, which would make it easier for her husband to sell the property without her knowledge.

It’s now more common for couples to be co habiting.  If both of their names are on the title deeds, then their marital status is irrelevant.  They both have the right to sell the property, even if the other doesn’t agree as we’ve talked about above.   The proceeds of sale will be split either 50/50 (if they bought as joint tenants) or in accordance with the shares in which they bought the property (if they bought as tenant’s in common).

Of course if only one half of a co habiting couple has their name on the title deeds, the other half has much less rights.   This could have occurred because one party moved into the property that the other party already owned.  Or it could be that they bought the property together, but one party had a much better credit rating and so was in a better position to raise a mortgage than the other.

It’s commonly believed that if you’ve lived together for two years or more, you become “common law” husband and wife, and so have similar rights and obligations as a married couple.  This simply isn’t true.  So you could have a situation where a woman moves in with her boyfriend, they start a family, she gives up work to look after the children, and the boyfriend pays for everything.  After a few years they decide to go their separate ways.  She will be entitled to maintenance for the children, but no matter how rich he is, or how much she gave up for the family, she will have no automatic right to maintenance for herself or a share of his assets in the way that she would have done if they had been married.

On the other hand, you could have a woman who moves in with her boyfriend, and invests time and money in the property such as paying for a conservatory, or installing a new bathroom. Even doing DIY work herself could amount to an investment in the property.  If the boyfriend gets a bit tight for cash, he might ask the girlfriend to pay the mortgage one month.  If any of these type of things happen, she could claim to have an interest in the property.

Of course this doesn’t just apply if a woman is moving in with a man, it applies the other way around, or same sex couples and it could even apply if you’re just friends living together.

If you are moving in to someone else’s property, or you’ve having a friend or partner move in with you, there are things you can do to make sure there are no misunderstandings about what happens when you sell the property or if you want the person to move out.  For example, you could have a cohabitation agreement, or if it’s just a friend, a lodger’s agreement.   You should also agree between you what the person moving in can and cannot do.  For example, if you are inviting your partner to move in with you, you might want to ensure that they don’t do anything that could amount to making improvements in the property.  Any money they give you should be for rent, and not a payment towards the mortgage or improvements and make sure you keep records.

This is obviously only a brief outline of what is a very complicated area of law, so if this is something you need to know about, get in touch with us if you are having someone move in with you, and we’ll do our best to help you.  If the situation has already arisen, and you want to know what your rights and obligations are, or how best to avoid or raise a potential claim, let us know and we’ll point you in the right direction.

Ultimately, if your name is on the land registry details for the property, you have an interest in the property.  If not, you don’t automatically have an interest, but that doesn’t mean you don’t have a claim.

 Disclaimer – our articles are designed to give you guidance and information.  There is no substitute for proper direct advice, particularly as everyone’s circumstances are different.  If anything in this article may affect you, please contact us for advice that is specific to your circumstances.