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If you need expert legal advice regarding declaration of trust or a cohabitation agreements, please contact our property litigation team:
If you are unmarried and have split from your partner, it can be confusing to know what rights you have in relation to the property you occupy.
Your rights will differ depending on whether your name is on the legal title and the financial arrangements you had with your partner.
My partner owns the house. What rights do I have?
You do not have an automatic right to half of the property because you live there.
If you had a cohabitation agreement drawn up when you moved into the property, then the terms of that agreement should be looked at.
However, if one of the parties no longer wishes to proceed in accordance with the terms of that agreement, you should seek legal advice as soon as possible.
You do not have to be a legal owner of the property to acquire an interest in the property.
There is a possibility that if there was an agreement with your partner that you would have an interest in the property and contribute financially to the property, you may be entitled to a share of the beneficial interest, and you could have a right to the property.
This is known as a constructive trust.
Constructive Trust
A constructive trust arises where it would not be conscionable for the person who owns the legal title to the property to deny the other of an interest in it, as otherwise they would be unjustly enriched.
A constructive trust is based on the parties' intentions, and it can either be express and therefore written by way of a declaration of trust or inferred through conduct.
It is for you to show that you and the legal owner intended to share the beneficial interest in the property.
Once it has been established that you intended to share the beneficial interest in the property, it may be that your share in the property has increased over time due to a subsequent event or agreement.
Ambulatory Trust
Alternatively, the Court could conclude that there was no initial agreement between you and the legal owner to share a beneficial interest in the property but that this altered over time.
This is referred to as an ambulatory trust. An example of this is when one party may finance an extension or major improvement to the property so that the home is completely different from when it was originally purchased.
If there is a dispute with your partner about the property, you could seek to negotiate a settlement and agree on whether you have an interest in the property, whether the property is to be sold and how any equity in the property is divided.
If you are unable to reach an agreement, you do have the ability to issue court proceedings.
The Trust of Land and Appointment of Trustees Act 1996 (ToLATA) gives the Court certain powers to resolve disputes about ownership of land.
A cohabitee whose name is not on the legal title of the property can make a court application under ToLATA for a declaration that they have an interest in the property, an order that the property be sold and an order as to how the net proceeds of the sale are to be divided.
Disputes between co-owners
Where two or more people own property jointly as joint tenants or tenants in common, they are known as co-owners.
The Court can make an order declaring the extent of a beneficial interest belonging to a co-owner if there is a dispute surrounding this.
If one party does not wish to sell the property, you can make an application to the Court for an order for sale of the property.
If both owners of the property own it as 'joint tenants', and you separate, it would be advisable to sever the joint tenancy and therefore own the property as 'tenants in common'.
This will protect your share of the property should one of you pass away before the property is sold or transferred.
How to avoid property disputes in the future
If you are considering purchasing a property with somebody and are not married, it would be advisable to take advice on how the property will be split.
This could be through a declaration of trust or a cohabitation agreement.