Jointly owned home – should it be sold if children are in occupation?

On the breakdown of a cohabiting relationship, it is common for one party to ask for the sale of the jointly-owned family home to release their share of the equity and move on. What if children of the family are still living in the home? Should any sale be postponed until the children are adults? The answer is sometimes, but not always, as illustrated by the decision of Her Honour Judge Vincent in V v W [2020] WL 03421439.

Two statutes are usually relevant to a discussion about the family home of former cohabitants and their children: Trust of Land and Appointment of Trustees Act 1996 (“TLATA”) and Schedule 1 Children Act 1989 (“Schedule 1”). In brief, TLATA allows the court to make a declaration as to ownership of the home and an order for its sale and Schedule 1 enables a parent to apply to the court for financial provision from the other parent for the benefit of their children. Sometimes, those statutes conflict, as in V v W.

In this case, the parents, in their early fifties, had two teenaged children (14 and 19) and owned a house together. Although their relationship had ended, they continued to share the house, albeit on a part-time basis as the mother, an accountant, worked in London for part of the week; she could not afford to move out but did not feel welcome in the home either. The father was unable to work due to illness. The mother asked the court to declare that the beneficial interest in it was shared equally and order that it be sold. In contrast, while the father eventually conceded the 50/50 declaration, he asked the court (relying on Schedule 1) to postpone any sale until their 14 year old son reached 21 or finished his education. In other words, the father was asking for the mother to be kept from her share of the equity for at least 4 years so that he and the child could remain in the 4 bedroomed property.

Both TLATA and Schedule 1 list factors for the court to take into account when reaching its decision but these cases are usually decided on their facts and this was no exception. HHJ Vincent decided that it would be in the parties’, and their child’s, best interests for the property to be sold and net proceeds divided so that both parents could re-house themselves reasonably close to their child’s school. She did suggest that a sensible way forward might be for one party to buy the other’s share but that would be a matter for them.

This is an interesting illustration of the court’s reasoning when asked to decide applications under both TLATA and Schedule 1. The family and children team at Mills & Reeve have significant experience dealing with problems such as this. Contact them here for more information about how they can help you and your family.

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