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Original poster

Tenants in common - splitting up but didn't do a trust or will

51 replies

Carandache · 14/03/2023 13:19

My parents gave me a large deposit to pay for the deposit and stamp duty on the house my partner (and father of my 2 kids) bought years ago. At the time, because we weren't married, the solicitor advised that we should hold the property as tenants in common to recognise my parent's gift and to earmark that money for me in the event of separation. We did this - the house is owned as tenants in common. But we didn't take the next steps advised by the solicotor - to do a trust deed and will to set out the terms.

We are now separating. We are still not married. We still have a huge mortgage on the property (we had to get a second mortgage due to his failed business) with 15 years remaining. He is by far the higher earner but we've always paid the mortgage from our joint account.

Do I have a hope in hell of getting the money my parents contributed back if he forces me to sell? I think he wants to buy a house with his girlfriend. I'm pretty sure I know what the answer is but please be gentle on me - I know I was totally stupid not to sort things out properly at the time. Thank you.

OP posts:
AdInfinitum12 · 14/03/2023 13:21

Is there even enough equity to cover it? If you have a huge mortgage.

Can2022getanyworse · 14/03/2023 13:27

Not having a will doesn't matter as that only stipulates what happens to each person's share should one of you die.

Did you not complete the Trust deed at all? Is there any paperwork completed that might suggest this was the intention?

What are the figures - how much was your contribution /your parents/your ex, how much additional borrowing did you take, how much equity is left?

Fighting this through court will be VERY expensive. You should seek advice as to if your claim has any legs/evidence and if it will be worth it to persue.

ComtesseDeSpair · 14/03/2023 13:27

In what proportion are each of your shares in the property, was this distinguished? Do you have anything in writing (emails from your parents, between you and partner etc) from when the property was purchased which indicates that the money was gifted solely to you and there was an intention that if you separated it would be returned to you?

If you can demonstrate the latter then a good solicitor may be able to make a case for its return. The fact that the property was bought “years ago” does muddy the waters somewhat, though, more so than if it was a short relationship with little or no intermingling of money.

prh47bridge · 14/03/2023 14:57

In the absence of a deed of trust, you and he are each entitled to 50% of the equity in the property unless you can prove that there was a common intention that you should own a larger share. You need to consult a solicitor.

Original poster
Carandache · 14/03/2023 16:22

Many thanks for the responses. There are a couple of letters from the solicitor referring to tenants in common and my parents gift but there is no deed if trust

OP posts:
Original poster
Carandache · 14/03/2023 16:23

I don't think I have any evidence that the money was intended solely as a gift to me

OP posts:
sunnydayys · 14/03/2023 16:30

Ask the land registry for a copy of TR1 form from when you bought the house.
Section 10 states if you were joint tenants or tenants in common and if tenants in common it's usually stipulated who would be owed what.

prh47bridge · 14/03/2023 16:30

Carandache · 14/03/2023 16:23

I don't think I have any evidence that the money was intended solely as a gift to me

You don't need that. What you need is evidence that you and your partner intended that you should get more than 50% of the equity when the house was sold and that you have acted to your own detriment by relying on this.

gogohmm · 14/03/2023 16:34

Can you just talk? Most finances can be settled by negotiation

Original poster
Carandache · 14/03/2023 22:20

Thanks so much, very helpful information. I agree that we should talk but don't hold out much hope.

OP posts:
Li0nTamer2 · 15/03/2023 09:49

I believe as you are not married, the split will be 50/50

purpledalmation · 15/03/2023 10:15

I'm sure your parents (I hope) have evidence they transferred the money to you solely and from there you put it into the deposit? If it's provable this money was yours exclusively and they can provide a statement to that effect, it should be safeguarded. I don't think it will be any more expensive than the usual legal fees for separating unmarried couples. If you have solid evidence he will be shown this and his solicitor will advise him not to pursue this. Your parents may have even signed a disclosure at the bank (not sure if it was in force so long ago, but it is now) to say the money was a gift. Worth checking.

purpledalmation · 15/03/2023 10:16

Li0nTamer2 · 15/03/2023 09:49

I believe as you are not married, the split will be 50/50

Not strictly true. This is for marriage, but unmarried a lot depends on personal contribution.

ComtesseDeSpair · 15/03/2023 10:43

purpledalmation · 15/03/2023 10:15

I'm sure your parents (I hope) have evidence they transferred the money to you solely and from there you put it into the deposit? If it's provable this money was yours exclusively and they can provide a statement to that effect, it should be safeguarded. I don't think it will be any more expensive than the usual legal fees for separating unmarried couples. If you have solid evidence he will be shown this and his solicitor will advise him not to pursue this. Your parents may have even signed a disclosure at the bank (not sure if it was in force so long ago, but it is now) to say the money was a gift. Worth checking.

Who the money was transferred to and what her parents might have told a bank about it doesn’t demonstrate any form of agreement about it thereafter between OP and her partner. What the OP needs is evidence that there was an agreement between her and her partner that as she was providing the deposit she would be due a greater share of the equity or the return of her deposit if they separated.

I’m not a conveyancer and it’s been a long time since my ex and I owned our property as tenants in common, but at the time we asked for ownership as tenants in common, we specified in which proportions (70/30) we wanted to own it. Are you sure you didn’t ever specify this at the point of conveyance?

Youcancallmeirrelevant · 15/03/2023 10:45

Tenants in common usually means you own a different percentage each, so that should account for the deposit?

E.g. me and my DP, i own 60% of the property and he owns 40%

MadeInChorley · 15/03/2023 10:48

sunnydayys · 14/03/2023 16:30

Ask the land registry for a copy of TR1 form from when you bought the house.
Section 10 states if you were joint tenants or tenants in common and if tenants in common it's usually stipulated who would be owed what.

This. You can get a copy of the TR1 used when you bought the property from the Land Registry. It will cost you a few £ to get. That will evidence what the LR recorded as the ownership structure - as tenants in common or joint tenants.

vivainsomnia · 15/03/2023 11:50

So what percentage did you agree at the time you agreed to go as tenants in common?

shorttwoshot · 15/03/2023 12:13

If you're tenants in common and unmarried, then I think you both are entitled to your proportionate share of the equity.

So....

E.g you are tenants in common with you owning 70% and ex owning 30%

House is worth £500k
Mortgage balance is £400k
Equity is £100k
Your share is £70k
His share is £30k

If you were married then it would be 50/50 in the absence of a deed of trust. I made this mistake as I was tenants in common with my ex husband due to my inheritance paying the deposit. But if you're not married, your assets belong to you xx

User17865 · 15/03/2023 12:20

MadeInChorley · 15/03/2023 10:48

This. You can get a copy of the TR1 used when you bought the property from the Land Registry. It will cost you a few £ to get. That will evidence what the LR recorded as the ownership structure - as tenants in common or joint tenants.

Show quote history

Not necessarily. In my case it just said tenants in common and the solicitor hadn’t registered the deed of trust. They don’t have to apparently and would take no responsibility for it not being registered. In that situation 50/50 is the presumption.
It’s definitely going to be worth you taking proper legal advice OP. If you can get him to agree to give the same instructions as you to the conveyancer, that you own 70% and him 30% or whatever the split should be. That would be the simplest way to solve it obviously. Surely he’ll want you to be able to purchase a home for the children? When he’s the higher earner than means you need your deposit back.

purpledalmation · 15/03/2023 12:33

@ComtesseDeSpair I'm assuming the OP will give a statement to say this was the agreement, and with parental proof of transfer of the money and a statement from them that it should be ringfenced, that will at least be some evidence.

ComtesseDeSpair · 15/03/2023 12:36

purpledalmation · 15/03/2023 12:33

@ComtesseDeSpair I'm assuming the OP will give a statement to say this was the agreement, and with parental proof of transfer of the money and a statement from them that it should be ringfenced, that will at least be some evidence.

A lot of legal fees would be saved in all kinds of situations if people providing statements many years after the fact claiming that an arrangement to their benefit was what all parties agreed at the time was sufficient legal evidence.

prh47bridge · 15/03/2023 13:05

Youcancallmeirrelevant · 15/03/2023 10:45

Tenants in common usually means you own a different percentage each, so that should account for the deposit?

E.g. me and my DP, i own 60% of the property and he owns 40%

No. It can mean that but in the vast majority of cases it means that each person owns 50%.

EyesOnThePies · 15/03/2023 13:32

Is there no chance that he would just do the decent thing and let you take your parents gift back before splitting the rest?

prh47bridge · 15/03/2023 13:33

We are again getting posts from people offering legal advice who, sadly, don't understand the law.

In the absence of a deed of trust, the assumption is that OP and her ex are each entitled to 50% of the equity. If they were married, it would be different - the house would simply go into the pot to be divided between them.

As @ComtesseDeSpair says, as they are not married, what matters is whether OP has evidence that there was a common intention between her and her ex that she should get more than 50% of the equity when the house is sold. What OP agreed with her parents is irrelevant. What her parents thought was happening is irrelevant. And someone writing a statement now making claims about what was agreed years ago is of only limited value as evidence.

MadeInChorley · 15/03/2023 16:05

User17865 · 15/03/2023 12:20

Not necessarily. In my case it just said tenants in common and the solicitor hadn’t registered the deed of trust. They don’t have to apparently and would take no responsibility for it not being registered. In that situation 50/50 is the presumption.
It’s definitely going to be worth you taking proper legal advice OP. If you can get him to agree to give the same instructions as you to the conveyancer, that you own 70% and him 30% or whatever the split should be. That would be the simplest way to solve it obviously. Surely he’ll want you to be able to purchase a home for the children? When he’s the higher earner than means you need your deposit back.

Show quote history

Then, in your case, your solicitor is at fault if there was a separate trust deed evidencing shares and it was not registered at the time of conveyance. I suggest you seek compensation if that is correct. However, the OP said she didn’t have a separate Trust Deed and, even for holding as tenants in common, one is not necessary. Part 10 of a TR1 is enough to create a legal trust and declare that you are holding the property as tenants in common with a space given to state what percentages you each hold in the property or a box that says “equal shares”. The OP needs a copy of the TR1 and to go from
there. There should be a corresponding restriction on the title stating there is a trust. Again the OP needs a copy of the Land Register and the TR1.