If your partner won’t agree to sell your house, you may feel stuck.
In some circumstances, you can ask the court to order the sale of a jointly owned property. However, going to court is usually a last resort. Negotiation, mediation or one owner buying out the other can often resolve the situation more quickly and with less expense.
In this article, Property Litigation expert Anna Curtis explains how an order for sale works and what the court will consider if you and your partner cannot agree.
Can you actually force someone to sell a jointly owned property?
Yes, in certain circumstances you can force someone to sell a jointly owned property.
Where a jointly owned property is held on trust, and the owners cannot agree about what should happen to it, a trustee or someone with a beneficial interest can apply to the court under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”).
The court has several options. It can:
- Order the property to be sold
- Postpone a sale
- Give directions about how a sale should take place
- Decide what beneficial interest each person has in the property
Applying to court is normally a last resort. Before taking this step, it is usually sensible to explore whether you can agree a sale, transfer, buy-out or another solution.
You can find out more about what your legal rights over a jointly owned property are here.
What legal rights do you have to sell if your name is on the deeds?
If you are a registered owner, you will usually be a trustee of the property and may be able to apply to the court for an order for sale.
However, being named on the title does not automatically decide how much of the sale proceeds you are entitled to.
The court may need to decide whether you own the property equally or in different shares. It can consider documents such as:
- A Declaration of Trust
- The transfer deed
- Any written agreement between both parties
- Where relevant, showing your intentions and how you have dealt with the property
Someone who is not named as a registered owner may also be able to make an application if they can show they have a beneficial interest in the property.
Our expert Dispute Resolution team will be able to discuss your circumstances and the legal rights you have in plain English. Get in touch on 01202 499255.
Does your co-owner have the right to block a sale indefinitely?
Not necessarily.
Your partner or co-owner can refuse to cooperate with a voluntary sale, but that does not mean they can always prevent the property from being sold indefinitely.
If you cannot reach an agreement, you may be able to ask the court to intervene.
The court has wide discretion and will look at the circumstances of the case. In some situations, it may decide to postpone a sale rather than order one immediately. For example, the welfare of a child living in the property may be an important consideration.
Does it matter why they’re refusing to sell?
It can.
The court will consider why the property is held and the circumstances of the people affected by the trust.
Your partner may want to stay in the property because of financial difficulties, because they expect its value to rise or because you disagree about the asking price. These factors can help explain why there is a dispute, but they do not automatically prevent the court from ordering a sale.
The court will weigh the circumstances against factors including your right to realise your interest in the property, the welfare of any child living there and the interests of any secured lender.
What should you do before applying to court?
Before starting court proceedings, it is sensible to gather the key information about the property and your ownership.
This may include:
- An up-to-date copy of the registered title
- The transfer deed
- Any Declaration of Trust
- The current mortgage balance
- At least one realistic market valuation
Having this information can make it easier to understand the options available and explore whether an agreement can be reached.
You can also consider mediation. Court proceedings should generally be treated as a last resort.
It is recommended to seek legal advice before applying to the court. Our Property Litigation experts will be happy to guide you through the process in plain English. Get in touch on 01202 499255.
What is an order for sale and how does it work?
An order for sale is a court order requiring a property to be sold.
For example, it may deal with:
- Which estate agent should be used
- The asking price
- Access to the property for viewings
- Whether an offer should be accepted
- Who is responsible for the conveyancing
- What should happen if one owner refuses to sign the necessary documents
This can be particularly useful where one co-owner has been preventing a sale from moving forward.
What does a judge look at when deciding whether to order a sale?
The title documents, sometimes referred to as the deeds, and any express Declaration of Trust will usually be important when the court considers the parties’ ownership shares.
When deciding whether and when a property should be sold, section 15 of TOLATA requires the court to consider:
- The intentions of the person or people who created the trust
- The purpose for which the property is held
- The welfare of any child who lives, or could reasonably be expected to live, in the property as their home
- The interests of any secured creditor, such as a mortgage lender
The judge may also consider correspondence, agreements, mortgage records and evidence showing how the property was bought and used.
How long does it take to get a court order for sale?
A contested claim may take around 9 to 12 months to reach a final hearing, although timings can vary significantly between courts and cases.
If an agreement is reached through correspondence, negotiation or mediation, the matter may be resolved much sooner.
A more complicated dispute, particularly one involving both the sale of the property and disagreement about the parties’ beneficial ownership, may take longer.
How is an order for sale claim dealt with by the court?
A TOLATA claim is commonly brought using the court’s Part 8 procedure, although the appropriate procedure and court will depend on what you are asking the court to decide and the issues in dispute.
During the case, the court may give directions covering:
- Disclosure of documents
- Witness statements
- Valuation evidence
- Any interim hearings that are needed
The parties may also be encouraged to reach an agreement before the case goes to a final hearing.
What evidence is likely to be important?
The evidence needed will depend on the dispute, but useful documents may include:
- The official copy of the property title
- The transfer form completed when the property was bought
- Any Declaration of Trust
- Any cohabitation agreement
- Completion statements
- Bank records showing who paid the deposit
- Mortgage statements
- Invoices for substantial works to the property
- Correspondence about ownership or plans to sell
If one person says that your intentions about ownership changed after buying the property, messages from the time and evidence showing how you arranged your finances may also be important.
Our expert Property Litigation team can help you to ensure that you have all the evidence necessary to put you in the best position possible. Speak to an expert on 01202 499255.
Can a court refuse to order the sale of a house?
Yes. An order for sale is not automatic.
The court must be satisfied that the person applying is entitled to ask for the order and will consider the relevant legal factors alongside the evidence.
Depending on the circumstances, the court could refuse the particular order being requested, postpone the sale or make a different order.
What if children live in the property?
If the property is being used as a family home, the court will consider the reason it was originally bought or held and the welfare of any child living there.
In some circumstances, this could justify postponing a sale, particularly if moving immediately would cause serious practical disruption.
However, there is no automatic rule that having children living in the property will prevent a sale. The court will consider the individual circumstances of the case.
What happens to the money when the house is sold?
Once the property has been sold, the money received will normally first be used to pay:
- The outstanding mortgage
- Any other secured charges
- Estate agent fees
- Conveyancing fees
- As well as other authorised costs of the sale
The remaining net sale proceeds can then be divided in accordance with the court order.
How does the court decide who gets what from the sale?
The court will look at the available evidence to decide each person’s beneficial share in the property.
An express Declaration of Trust can be particularly important.
If there is no clear declaration setting out your shares, the Land Registry documents recording how ownership of the property is held will be an important starting point.
What if one of you paid more towards the house than the other ?
Paying more towards the property can be relevant, but it does not automatically mean that you own a larger share.
The court will first consider how the beneficial ownership was recorded and whether you made a binding declaration or later agreement about your shares.
Depending on the circumstances, it may also consider contributions towards:
- The deposit
- Capital mortgage repayments
- Essential repairs
- Improvements to the property
How much weight is given to these payments will depend on the circumstances and is ultimately a matter for the court.
Can I claim costs or compensation if my partner has blocked the sale?
The court will not usually award compensation simply because a co-owner opposed a sale.
If your court application is successful, you may be able to recover a proportion of your reasonable legal costs. However, costs are at the court’s discretion, and even a successful party is unlikely to recover all of their legal costs.
Can my partner buy me out instead?
Yes. A buy-out can be a practical alternative to selling the property on the open market.
Usually, the first step is to agree on an independent valuation. Alternatively, you could agree on a process for dealing with differences between two separate valuations.
The person remaining in the property will usually need their mortgage lender’s approval and must be able to arrange for the outgoing owner to be formally released from the mortgage.
The agreed terms should be recorded in a Settlement Agreement or, where court proceedings have already started, in an appropriate court order.
You can find out more about whether you can transfer ownership of a property in the UK here.
Can we resolve the dispute without going to court?
Yes. Many disagreements about jointly owned property are resolved without proceeding to court and if they do, they will often be resolved prior to a final hearing .
Possible solutions include:
- Agreeing to sell the property on the open market
- One owner buying the other person's share following an independent valuation
- Agreeing to postpone the sale for a short period
- Agreeing that the property will be sold once particular conditions have been met
Finding an agreed solution will usually give you more control over the outcome.
Can mediation help if my partner won’t agree to sell?
Mediation can be very effective in property disputes.
You and your partner jointly appoint an independent and impartial mediator. Their role is to help you identify the main issues, consider possible solutions and negotiate an agreement.
The mediator does not make a decision for you and does not provide legal advice.
Mediation is confidential and can take place either before or during court proceedings. It can also give you more flexibility to agree on a solution that a court may not be able to impose.
Can a solicitor's letter break the deadlock?
Sometimes, yes.
For example, it can:
- Request relevant documents
- Suggest obtaining a valuation
- Propose a process for putting the property on the market
- Set a reasonable deadline for a response
- Suggest mediation
- Propose a buy-out
- Explain the possible costs and consequences of allowing the dispute to continue
A formal letter can sometimes help to focus discussions, narrow the issues in dispute and make the consequences of refusing to engage clearer.
Our expert Property Litigation team can draft a solicitor's letter to help get things moving. Get in touch with our team on 01202 499255.
Is it better to negotiate or go to court?
Negotiation is usually quicker, more flexible, more private and less expensive than court proceedings.
It also gives you the opportunity to agree on arrangements that a court might not be able to order.
The difficulty is that negotiation needs some cooperation from both sides.
Court proceedings provide a binding timetable and allow the court to make enforceable orders where an agreement is impossible. However, litigation comes with court fees, legal costs, delays and the risk that the outcome will not be what either party expected.
The court will expect both parties to consider alternative ways of resolving the dispute. An unreasonable refusal to engage in alternative dispute resolution may also be taken into account when the court considers legal costs.
What if my partner has tried to remortgage or transfer the property?
A separate concern can arise where one owner believes the other is trying to remortgage or transfer the property without their agreement.
Can my partner remortgage a jointly owned property without my consent?
If the property is registered in joint names, both registered owners will normally need to sign a transfer or legal charge.
This means that one owner cannot ordinarily remortgage the whole property on their own.
If you are concerned about fraud or an unauthorised transaction, you should seek urgent legal advice.
What is a restriction on the Land Registry title?
A restriction is an entry on the Land Registry title that controls when a transaction, such as a transfer or charge, can be registered.
Depending on the restriction, certain evidence, consent or a certificate may be required before registration can take place.
A restriction does not, by itself, prove that someone has a beneficial interest in the property or establish how large that interest is.
The right restriction will depend on the ownership of the property and the interest being claimed. For example, a restriction may be appropriate where a property is registered in one person's sole name, but someone else says they have a beneficial interest.
There must be a proper legal basis for applying for a restriction, as an unjustified restriction can be challenged.
What happens if a co-owner ignores an order for sale?
A court order cannot simply be ignored.
If your partner refuses to cooperate after an order for sale has been made, you may need to return to court to ask for enforcement or further directions.
Depending on the order and how the sale is being obstructed, the court may be able to authorise steps allowing the transaction to continue despite a missing signature or enable someone else to act on behalf of the person who is refusing to cooperate.
Specialist solicitors for jointly owned property disputes
If your partner or co-owner is refusing to sell a jointly owned property, and you have questions after reading this article, or would like to discuss your options, our Property Litigation team can help.
We can help you understand your ownership position, explore whether an agreement can be reached and, where necessary, assist with an application to the court for an order for sale.
We offer all new clients a free initial chat. Get in touch with our expert team on 01202 499255 or by filling out the form at the top of this page.
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