Trapped in a joint mortgage with my ex
20 September 2024
Earlier this week, the BBC reported on the economic abuse being suffered by individuals trapped in a joint mortgage with their ex.
Lauren, not her real name, told the BBC she and her children were left penniless when her ex stopped making repayments and blocked attempts to sell or remortgage their joint property. “It’s sickening”, Lauren told the BBC, “The sale of the house would have given us a secure and fresh start”.
One in eight women who held a joint mortgage in the last two years experienced joint mortgage economic abuse from a current or former partner – equivalent to over 750,000 people, according to a new report by the charity Surviving Economic Abuse, which was published in September 2024.
Protection under the law
Yet, individuals in Lauren’s position do have options and protections under the law.
While it is true that all legal owners named ‘on the deeds’ need to cooperate with the sale and sign the necessary conveyancing paperwork, anyone who refuses to cooperate can ultimately be bypassed by a court to enable a sale to go ahead.
Specifically, Lauren could have issued an application to court under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) for an order that the property be sold.
Under section 14 TOLATA, the court has the power to step into the shoes of the owners and decide what should happen with the property, including whether it should be sold. Under TOLATA, the court can also deal with any consequential orders needed in connection with the sale, such as directing that a particular firm of estate agents or conveyancing solicitors be used.
Where the court has ordered a sale, it can also nominate another person to sign the conveyancing documents on behalf of an owner, if that person refuses to comply with the order or cannot be found (section 39 of the Senior Courts Act 1981 and section 38(1) of the County Courts Act 1984).
Once, therefore, the court has decided that a property be sold, there is ultimately no way for an abusive ex-partner to stop the process.
The courts decide
As part of the proceedings, the court can also determine matters such as who shall be permitted to occupy the property until it is sold. Moreover, it can award an ‘equitable account’ (a fine-tuning of the ultimate division of the sale proceeds) to achieve fairness between the parties in relation to things like mortgage payments.
If, therefore, Lauren had necessarily taken over payment of the mortgage when her ex refused to contribute, the court would have had the power to direct her ex to pay compensation to Lauren for these payments from his share of the sale proceeds.
Equitable accounting is complex area of law and subject to the court’s discretion, guided by a vast body of previous case law. Lauren’s chances of succeeding in a claim for equitable accounting would therefore depend on the specific facts of her case and the judge’s views on what, if anything, needs to be done to achieve justice between the parties.
If there is evidence of an ex-partner exerting financial control over their co-owner in respect of the mortgage as a form of economic abuse, this conduct will likely be considered by the court in reaching a decision.
Legal costs
Further, and importantly, Lauren could have asked for her legal costs of the TOLATA claim to have been paid by her ex and funded from his share of the sale proceeds. Costs recovery is ultimately at the discretion of the court, but the general rule is that the ‘winning’ party stands to recover a large proportion of their costs from the ‘losing’ party.
The threat of having to pay for Lauren’s legal costs, and have his controlling behaviour aired in open court for the world to see, might have persuaded Lauren’s ex to cooperate with the sale, without Lauren even having to issue the claim.
The Birketts view
While perpetrators of domestic abuse can use joint liability to cause a lot of economic harm, there are steps that can be taken to force a co-owner’s hand and bring about a sale of joint property. It is important to obtain the right legal advice in these situations.
At Birketts, the property litigation lawyers in our Home Ownership Disputes team specialise in TOLATA claims and have helped countless people in this situation. Our Property Litigation department is the fourth largest in the country, and our expert team of TOLATA lawyers are uniquely placed to resolve all kinds of property ownership and cohabitee disputes.
-
Laura Tanguay
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at September 2024.