Can a Jointly Owned Property Be Sold by One Owner?
- A legal or beneficial owner can apply to the court to get an order for sale.
- 5 different types of orders can be awarded.
- The Judge may not agree to an immediate sale where the property is a family/matrimonial home or if children/dependents live there.
- The decision to order to sell weighs heavily on the relationship and original intentions of the joint owners when they purchased the property.
- The legal costs for obtaining an order for sale range from £2,000 to £20,000 or more.
- Keep up repayment of your mortgage.
- Ignoring a court order to sell a house places you in contempt of court, and you could go to Jail.
- Our Property Dispute Solicitors are here to help.
Where a property or land is jointly owned, if one owner wishes to sell and the other doesn't, an application can be made to the court to obtain an order for sale. If you are married, read more - Can I force the sale of my house in a divorce?
Applications to force a sale aren't always successful, and the court may rule a different decision based on your relationship, living and financial arrangements and if there are any dependents or children under 18 living there. We explain all the different scenarios for forcing a sale for both the person wanting the sale and the person not wanting to sell.
Who can force the sale of a jointly owned property?
Section 14 of the Trusts of Land and Appointment of Trustees Act 1996 states: "(1) Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court for an order under this section".
A legal owner is a "trustee of land", and a beneficial owner is someone who "has an interest in property". If you have a beneficial interest in the property, you can apply to force a sale even if your name isn't on the legal title. Read more - Beneficial Ownership vs Legal Ownership.
For example: A boyfriend and girlfriend have been paying off a mortgage in the boyfriend's sole name for 10 years. The girlfriend has an interest in the property, and the boyfriend is holding the property on trust for himself and his girlfriend. The girlfriend could apply to the court to force the sale to get paid her beneficial interest. If you need help with this, please get in contact, and we can help - 0333 344 3234.
Book a FREE 15-minute meeting* with a specialist property dispute solicitor/consultant. They'll listen to your issue and suggest ways forward, including the costs, with No Obligation to use our services after the free meeting.
- How can you force a sale?
- What are you due on sale?
- Mediation and Settlement Agreements
- Applications to court, including Declaratory Orders, Regulatory Orders, Occupational Rent
How does the court decide when to force the sale of the house?
You can only force the sale against a co-owner if the court makes an order for the sale. As 5 different types of orders could be awarded, the courts must decide which suits the joint owners' specific circumstances.
Section 15 of Trusts of Land and Appointment of Trustees Act 1996 states: The matters to which the court is to have regard in determining an application for an order under section 14 include:
- the intentions of the person or persons (if any) who created the trust;
- the purposes for which the property subject to the trust is held;
- the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home; and
- the interests of any secured creditor of any beneficiary.
This means that joint ownership of property with children makes getting a court order to force the sale of property much harder, at least until the youngest child reaches the age of 18.
Intentions may change over time, either by mutual agreement or through your action or circumstances, so the courts will also consider whether the intentions agreed at the outset are still the same now when requesting an order for sale. An example of changing intentions could be when parents buy a home together to raise their family; however, the children move out. The home is no longer the family home but a home for just the parents, and the intentions have now changed.
Will the courts always force a sale
With several outcomes available to the court, any application should consider the facts that the courts use to make an order under section 15 of Trusts of Land and Appointment of Trustees Act 1996. This means that where one legal owner wants to sell, they can look to force a house sale through the courts, however, there is no guarantee you'll obtain an order for sale, and the legal costs can be expensive. Joint owners often look to mediation before going to court or agree their intentions within a deed of trust.
Where an order of sale is granted, you may still face a legal battle in proving how much money you are due from the property. Read more about Joint Property Ownership Disputes.
What are the 5 different orders when you force a sale?
When applying to force the sale of a jointly owned property, the courts can award the following orders:
- refuse a sale
- refuse a sale, but make an order regulating the right to occupy the property
- order a sale
- order a sale, but suspend the order for a short period; and
- partition the co-owned property (only awarded in exceptional cases)
- 1
Refuse a sale
When considering an order for sale, the courts take into consideration the factors listed in Section 15 of Trusts of Land and Appointments of Trustees Act 1996 (s15 TOLATA 1996). For example, if the joint owners intended to use the property as their residential home to raise their children, then the courts will take this into consideration if one of the joint owners applies for an order of sale.
It may be the case that the courts refuse the sale because the original agreement at the time of purchase was to live in the property as a family home. This could, however, be countered if the joint owners set out their intentions in a deed of trust, stating their intentions for the property as an investment to allow either party to agree on a sale at a future date with or without the consent of the other party.
Curtis v. Buchanan-Wollaston 1939
Four owners of separate properties decided to jointly buy the land in front of their properties to protect their view of the ocean. They confirmed this intention within a deed of covenant, where they agreed no single person could sell the jointly owned land without first obtaining consent from all of the joint owners.
In this case, the court held that an order of sale should be refused, as the original intention of the joint owners was to hold the land and protect their view until such a time when all of the joint owners agreed to sell the land.
- 2
Refuse a sale but make an order regulating the right to occupy the property
An order for sale can be refused; however, the courts may instead award provisions for the right to occupy the property, such as if one party has to leave, then the remaining joint owner must pay them rent. This type of order is often seen where:
- it is socially undesirable to order the property to be sold; and
- it is unfair that the joint owner(s) not in occupation (not living at the address) should be excluded from all benefits from the property
Dennis v McDonald 1982
In this case, the joint owners were co-habiting tenants in common with an equal share in the property. They had 5 children together; however, the relationship broke down because of the father's violence, so the mother left the property with 2 of her children. The mother made an order for sale that was refused, as the original intention for the property was to provide a home for their family. The courts did, however, order the father to pay occupational rent throughout his residence in the property. The rent was fixed based on half of the property's 'fair rent'.
- 3
Order a sale
An order for sale can be granted where:
- the property was purchased as an investment;
- there is a large number of joint owners, and the majority wanted a sale. Read more - What happens if the majority of joint owners want to sell?; or
- the purposes for which the property was purchased have failed. An example of where the purpose has failed is when the property was purchased as a marital home, but the couple breaks up, and there are no children.
Jones v Challenger 1961
In this case, a couple purchased a property as their matrimonial home. There were no children, and the marriage broke down. The wife moved out to live with another man and filed for an order for sale. The courts gave the order, as it was viewed that the original purpose for the property was for it to be a matrimonial home. Once the marriage ended, the purpose changed, and both parties could no longer enjoy the occupation of the property together and receive an equal benefit from their investment.
- 4
Order a sale but suspend the order for a short period
A court may make an order for sale but delay the order for a period of time (known as a Mesher Order) to give a co-owner wishing to retain the property the opportunity to buy the other/s beneficial interest. The amount payable for the leaving co-owner's beneficial interest is calculated using a percentage of the fair value of the property. Read more - How to Calculate Buying Someone Out of a House.
What happens if the majority of co-owners want to sell?
s15(3) TOLATA 1996 states: ...the matters to which the court is to have regard also include the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in property subject to the trust or (in case of dispute) of the majority (according to the value of their combined interests).
If the majority of the co-owners wish to sell, then the court would normally order a sale. This doesn't help where there are only 2 legal owners, however if there are 3 and 2 want to sell, then the majority should win the order for sale. In such cases, the parties would save money on legal and court fees if the party who doesn't want to sell changed their position.
How do you prove the original intentions of the legal owners?
When a property is co-owned, the joint owners will have agreed on the intentions for the property between them. For example:
- Family Home - a husband and wife buy a home as their main residence to have children in. The purpose is to provide a home for their family, and they intend to live in the property indefinitely.
- Matrimonial Home - a husband and wife buy a home as their main residence to live in whilst married. The purpose is to provide a home for them to live in and benefit from together, and they intend to live in the property whilst they are married together.
- Pre-Marital Home - a young couple buys a property intending to keep their ownership separate and sell the property in the future. The purpose is to have a mutual benefit of living in the property, and the intention is to live in the property for a short period to sell or make the property their matrimonial home in the future.
- Investment - investors buying a property as a buy to let. The purpose is to buy a property, not to live in, but to have tenants intending to make a financial gain for some time.
Relationships and intentions can change over the lifetime of the property ownership. Joint owners should set out their intentions within a deed of trust when buying a property so that they can agree what they are and confirm how they wish the co-ownership to come to an end if their relationship should change.
How to apply for a court order to sell a house
It is best to instruct a specialist solicitor to apply to the court to judge a force of sale. You may inadvertently ruin your chances of giving the order by not providing the correct information.
Once you apply, a directions date is set. This preliminary hearing allows the judge to direct the joint owners and set a hearing date. Directions could be to allow the Judge to iron out any silly behaviour that isn't in the owners' interests and will waste the owners and the court's time and money/resources. At the hearing, a court date is set.
On the court date, both sides present their arguments and supply their evidence in a prescribed format. The judge makes an order based on this using Form CH15: Common form of order for sale. You can appeal the decision.
How long does it take to get an order to force a sale?
The courts are backlogged, so a hearing 3 to 12 months in the future is not unheard of.
How much does it cost to force the sale of a house?
Description | Cost Range (£) |
Solicitor's Legal Fee - Contact with owner The solicitor will write to the other owner, which opens a dialogue that could increase costs, especially if the other owner refuses to interact. | £800 to £1,200 INC VAT |
Solicitor's Legal Fee - Application to court Creation of a court bundle of evidence to submit to court, preparing witness statements (if required), initial meeting with counsel and submission of court application. | £2,000 - £3,000 INC VAT |
Counsel Fee Counsel will represent the applicant at court in front of the Judge (not normally your solicitor). | £1,000 to £3,000 INC VAT |
Court Fee The court fee for an order of sale changes. Check here - What is the court fee for forcing a sale? | £308 |
Sale Conveyancing Legal fees Once you have an order to force the sale of a jointly owned property, you can instruct a solicitor to handle the sale. This follows the standard conveyancing process. | £800-£1,500 INC VAT |
Who pays legal fees in forced house sale?
- Legal fees to sell. These are normally shared equally between you.
- Court fees. Normally paid for by the person applying for the order of sale. The applicant can ask the Judge to order this cost sharing.
- Litigation legal fees. During the process, if a joint owner is delaying, obstructive or generally not engaging with the process, the other owner can apply for their costs in legal fees to be reimbursed.
Caragh is an excellent writer and copy editor of books, news articles and editorials. She has written extensively for SAM for a variety of conveyancing, survey, property law and mortgage-related articles.
