How Can I Dissolve A Joint Property Ownership?

Q.

The question relates to the choice of court, and whether this is a small claim at all (or a county court matter) and the location of the relevant court.

I own a property jointly (50% share) with another party. Neither of us live in the property.

The other party has been damaging the property and has acted in ways that prevent its use by any party. The reasons for this are complicated and not relevant here.

I wish to separate my business activities from the other party. However the other party has refused to reply to correspondence proposing sale of the property. I have proposed that the property be placed on the open market, and that either of us could bid in competition if we wish. This too has received no reply over more than a year of repeated requests.

I wish to apply to the court to enforce a sale of the property. I do not wish to claim damages from the other party. Thus the value of the claim is in-effect zero, simply a request to enforce the making of a decision.

A.

There are two different forms of joint property ownership.

Both are described as tenancies even though the property is owned and not held under a tenancy in the popular sense of the word:

• Joint Tenancy – The property is held in equal shares and neither owner can sell or otherwise dispose of their share in the property without the other owner’s permission. If one owner dies, their share in the property is automatically transferred to the other owner. If one of the joint tenants becomes bankrupt the legal form of ownership will be converted to a tenancy-in-common.
• Tenancy-in-Common – The owners may have different proportions of the property and any one owner is free to sell or transfer their share in the property without needing the other owner or owners’ permission. If one of the tenants-in-common dies their share of the property passes to their estate and not to the other owners.

If joint owners purchased the property with a mortgage they will be “jointly and severally” liable for the mortgage debt. This means that, regardless of any separate arrangement they may have to pay the monthly instalments due under the mortgage, each owner is individually liable for the whole mortgage. In the case of a default, the mortgage company could pursue any or all owners for the debt. In practice the mortgage company would be likely to pursue all owners to maximise the chances of recovering the money owed.

If you are not sure how you hold the property you should start by look at any transfer or title documents you may have. The solicitor who carried out the conveyancing may also be able to advise you on the type of ownership.

How joint property ownership can be dissolved will depend on whether the owners hold the property as joint tenants or tenants-in-common. A tenant-in-common could simply sell their share in the property to a third party thereby effectively dissolving the existing joint ownership. A joint tenancy may be ended by one owner giving notice in writing - a notice of severance - to the other owner or owners that he wishes to end it. The Land Registry must be notified of the severance. The property will then be held as tenants-in-common with either owner free to dispose of their share as they wish.

An application could be made to a county court for an order for sale forcing the other owner to cooperate in the proposed sale and, ultimately, asking the court to give you possession of the property if he fails to cooperate. If a dispute arose as to how much of the property each tenant-in-common actually owned, an application could also be made asking the court to decide the size of the respective shares. The correct court would be the court where the property is located. The small claims procedure is not applicable to this kind of application and legal advice should be obtained before issuing a claim.