In the event of a relationship breakdown it is likely that one of the parties will vacate the family home. Sometimes the family home will be registered in the sole name of one of the parties. This normally happens when the property was purchased prior the relationship starting or when one of the parties was unable to obtain a mortgage due to age, income or previous credit history. How do you therefore ensure that your interest in your home is protected?
Without protecting your interest your ex-partner who owns the property in their sole name will be able to sell the property, re-mortgage or take out further advances against the property without you ever being aware. Protecting your interest is therefore crucial when you have financially contributed to the property as if your ex-partner did sell or re-mortgage then it could be extremely difficult for you to obtain your money back or realise your interest in the property.
Stephensons would therefore strongly advise you to register your interest with the Land Registry. The initial process is quite simple and requires you to send a form to the Land Registry asking that a notice goes on the Title Register of the property that you have an interest in it. However, before the Land Registry will enter your interest your ex-partner will be given opportunity to agree or object to the restriction. If they object to the restriction your application will be referred to the Adjudicator to the Land Registry. An Adjudicator is an independent person who is qualified to consider these disputes. They will hear all of the evidence and give judgement as to whether the restriction should be entered or not.
There has recently been a case heard by the High Court in respect of these types of disputes (KUSUM JAYASINGHE V DON LIYANAGE 2010). This case held that the Adjudicator was required to determine whether the applicant had a relevant right or claim and the additional question whether the entry of a restriction was necessary or desirable. This case also confirmed that the Adjudicator has jurisdiction to determine the matter substantively rather than refer it to a court.
Therefore in the event that your ex-partner does not agree to you registering your interest the Adjudicator will consider the issue. The Adjudicator will determine whether you are entitled to an interest in the property and whether you should be allowed to register your interest. The Adjudicator could also potentially refer your case to the Courts for them to determine whether you should be entitled to an interest in the property.
To enable you to claim an interest you would have to prove that you have contributed to the property in some way. This can be by discussion i.e. was it agreed that you had an interest when the property was purchased or when you moved into the property. This can be ‘express’ and requires specific discussions, that the property would be jointly owned and any equity divided between the parties. However, importantly, it can also be ‘implied’ if the other party has contributed towards the purchase price usually by the way of contributions towards the mortgage. Another method of claiming an interest is if you have provided a substantial contribution to the value of the property for example by paying the deposit or for a home improvement.
Stephensons would therefore always advise that you obtain legal assistance before registering your interest. This is in the event that your application is objected to. Adjudication and Court disputes can be lengthy and complex. This is because you will need to prove you are entitled to register your interest against the property.
It is important following the breakdown of a relationship that you seek legal advice as soon as possible. We can advise you on a variety of ways of protecting your rights in this situation. That may be by simply registering your interest with the Land Registry or by reaching a documented agreement with your ex-partner.
For advice in relation to registering an interest in a property call us on 0333 344 4772 or complete our enquiry form and a member of the team will contact you.