Can I expect more than 50% share of equity if ds lives with me?

[littlecritter]

XP has left me and ds age 9. I want to stay in the family home. House is in joint names. I paid the deposit and also paid off a large lump sum from inheritance. After this there will be around £45k equity. XP wants 50% share of this. I have been told I could be entitled to more like 66% as ds will remain with me. I earn less than half of XP's salary. I would be happy with 60%.

Does anyone have any experience of this?

Yes you can expect more of 50%, but you may need to fight for that. Having said that, if you can't afford to rehouse DS and yourself on your salary and a significant part of the equity, you may get to delay the sale of the house (and the division of the equity) and stay in it at least until he is 16.

I was under the impression that that only applied to married couples but I have been corrected recently.

Thanks. Is 60% reasonable and fair, do you think? And where can I show XP that it is likely I would get more than 50%? I really don't want to fight any more.

Are you married? Makes a huge difference really.

If not married, you'll have to give him half after you get back the extra capital you paid in, provided it was paid in only after you bought the property. You may be able to delay a sale under either schedule 1 of the children act 1989, or by simply defending an application brought by exP under s14 of the Trust of Land and Appointment of Trustees Act.

If married, then your income disparity will be taken into account by the judge, and you may be actually given some og exPs interest in the property rather than merely being allowed to use it until ds reaches 18.

To succeed onder TOLATA or Schedule 1 you'll have to prove that you can't rehouse your son in a suitable property without having this house to live in. That might be fairly easy to do if there's not much equity to argue over, but can't you increase the mortgage a bit and give him something? He'll have his own housing needs to think about, and presumably will want ds to stay over with him sometimes.

As co-owners how do you own the house as this is crucial right now? If you own it as 'joint tenants' you are effectively entitled to half the value if sold, etc.

If you own it as tenant in common you may own the equity in unequal shares. I suspect you own it as joint tenants. If that's the case you MUST do what is called 'serving a Notice of Severance' and send a copy to the Land Registry.

This converts it to a tenancy in common. In turn, this means you are entitled to the value of the property you have put into it. Youwill need to keep a record of the amount you have put into the property, eg, the inheritance lump sum, deposit etc.

Hope that helps. Any queries let me know.

Thanks, Perm. Looks like I need to get to the solicitor asap. Yes we are joint tenants. Is the remaining equity still divided 50/50 given that I will have ds and have reduced my hours to be the primary carer?

Yes if you're not married, although you might be able to delay a sale.

From what I've learned recently re unmarried couples and houses, if owned as joint tenants then if one partner has put in a greater share eg, deposit, extension etc and can provide proof of it, they are entitled to a greater share following the sale provided equal payments have been made thereafter.

He cannot force a sale if you have a young child if mortgage payments can continue to be made by you alone, but he will maintain a share of the house - minus your additional input and the extra payments you have made.

He can maintain his interest in the house at a higher level (though not 50/50) if he continues to pay half the mortgage and sell when the youngest child leaves full time education (19-20 if uni)

This all needs to be arranged by a solicitor and is the financial agreement you both abide by and agree to.

sneezecake - paying more than the other when the property is acquired doesn't give you more than half if the deeds say you own it equally. Contributions after the date of acquisition might (not will) adjust interests.

He can force a sale if the child can be adequately rehoused elsewhere. His maintaining of his 50% interest (and it won't reduce from wha it is today) will not be dependent upon him paying the mortgage. Indeed the parent who remains in the property usualy has to meet the mortgage payments.

[I think there is now a presumption that if two people buy a house intended as a residence as joint tenants then the equity is owned 50:50 unless something different was stated (and lodged at land registry) at the time of purchase. Stack v Dowden anyone? Dredging my memory as haven't done a tolata case for some time...]

anyway you need some advice. go to a good practice and probably one that is a member of resolution - they will have wide experience in family matters including those relating to non-married partners

Res. Thats what I mean, if someone puts a whopping extension on my understanding is that can be taken into account? as you say not necessarily but certainly a factor to be considered. Is the deposit not counted then? I suppose if the deeds say 50/50 from that starting point following payment of the deposit by one person it is the payments made after that, that affect the division, unless there is provision in the deeds for the unequal deposit.

Surely if the departed partner continues to pay 50% of the mortgage until it is sold he can maintain his 50% share of the property when it is finally sold rather than 50% minus what his ex P has continued to pay following him stopping payments? Isnt it more sensible to continue to demonstrate a share and equal interest in the house?

OP says equity 45K, surely half of this is not adequate to house a child. ?

seeezy - when the property is bought the owners enter into a deed saying what their shares are. That is after the deposit/initial contribution has been paid, so if they are joint tenants it's 50/50 - or whatever the deeds might say otherwise.

Building an extension might be evidence of a change in the agreement between the parties. Sometimes it's things like paying for new windows. The less money is spent I suppose the less likely it will affect the share. It all depends on the individual circumstances in each case.

The party remaining in the property will have to, out of their own income (which will include child maintenance), pay the mortgage. they will get credit on eventual sale for any capital reayments, but not for interest payments. Interest payments will be off-set by the notional occupation rent paid to the excluded party, who will not be expected to pay their exP's housing costs. Can't imagine many could afford to pay that on top of CSA. Remember, they will also have to rehouse themselves and will not have their share of the equity to do that.

£22.5k might be enough if little critter can get a mortgage to fund the rest of the purchase price. It all depends on her income and the local housing market.

Res. My BIL is in a position to pay 1/2 of his ex P interest only mortgage - it is only £150, so not much. CSA have recommended £25 pw. for DD. In his case this would be £258 pcm which he hopes he can pay as he will be living with new DP as she owns her house outright. Will this make it easier to calculate at the selling off time when DD is 20 ish? Don't mean to hyjack but this might also interest OP.

If he wants to pay voluntarily he can do so. It won't serve to enhance his share unless she agrees, in which case perhaps on sale she should reimburse him his contributions out of her half share. I suspect she might not be willing to do this though. She can say to the CSA that she accepts mortgage payments as part payment of CSA assessment, though no one can make her do this.

Thank you Res. Does my BIL and the OP have to go to court to sort out the financial arrangements or will the solicitors be able to work out a financial agreement between the two parties and hopefully keep costs down. BILs ExP has emptied out BILs private bank ac (long story) so he's a bit short!

his resolution - where does it say that the person remaining has to pay all the interest/mortgage? or is it just expected?

"The party remaining in the property will have to, out of their own income (which will include child maintenance), pay the mortgage. they will get credit on eventual sale for any capital reayments, but not for interest payments. Interest payments will be off-set by the notional occupation rent paid to the excluded party, who will not be expected to pay their exP's housing costs. "

(sorri sneezecake hijacking)

i think if soclicitors get it drawn up/ it is agreed in mediation you can avoid lots of court costs...

Thank you cest. BIL wants to go for mediation and avoid court costs. Am surprised re not paying mortgage if he can as his solicitor told him to keep paying. Perhaps he meant until a financial solution is agreed. Sounds sensible! Thanks again.

sneezy - that assumption will be correct. Whilst negotiations take place the status quo will have to remain if possible. That way all options remain open.

cestlavie - it is more than just expected. In the vast majority of cases (ie 99%+) the parent who leaves can't afford to pay anything more than child maintenance anyway. There is an equitable accounting called occupation rent. If one owner is excluded by the other, the one who remains will have to pay rent equivalent to half the rental value. How convenient! In practice this almost always amounts to half the mortgage payments. Credit is always given for capital repayments.

Just to clarify the earlier posting by babyb - whilst children have their own claim under schedule 1, this is nearly always made through the parent with whom they live. Save in the case of very wealthy parents, this will involve a family home being kept on for the child to live in. At age 18 the home is usually sold. The child will not be personally enriched at the expense of the parent.
In the case of wealthy absent parents the father (say) may be ordered to pay school fees (either ongoing or by settling funds upon trust) and set up costs, eg for a house move or car purchase and the like. These additional costs must relate to the child, and cover expenses whilst still a child. The court cannot make an award to set up a child for when they become an adult.

Will be interesting to see what effect the tuition fee disgrace will have upon future awards by the court. Personally, I think that the courts won't expect a parent to pay out of their housing capital for a child to leave university debt free.

ok i can see why in my case the barrister said it was complex case! it really doesnt fit the majority -
ie: i am the parent who left the FMH but with the children. i am the sole parent earner.

exP is paying £100 per month less than the mortgage interest payments on FMH (his father is sponsorng him) . half the rental value would actually be twice as much as the mortgage interest payments. but he has no income so cant pay anyway...

i dont want to move back into the FMH but do want it sold so i can access the equity from it.

so at least for op - and sneezecake's BIL - the situations should be easier to resolve in mediation as they fit into the "majority of cases" scenario...

You will be able to get the property sold. If he's not paying all the interest and the mortgage debt increases then he'll have to bear responsibility for the extra debt on sale.

You are entitled to your half share on sale. Whether you can use some or all of his half share to buy a new home (this will give him a deferred interest in your new home) depends upon your housing needs and your ability to meet them without recourse to his share.