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What can I do if my ex won’t sell the house?

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One of the primary concerns for separating or divorcing couples is what will happen to the former family home. One party may push for a sale, whilst the other may be determined to stay living in the family home, particularly if children are involved. In this article, we look at whether it is possible to sell a house when your ex refuses, and what you can do about it.

Property in one party’s name

If you are married or in a civil partnership and the property is only owned by one of you, then the person who owns the house has the right to stay there. However, a non-entitled party also has the right to occupy the family home, alongside any children. Even if it is sold to a third party, they have the right to continue living there. If the owner wishes to sell, they will have to obtain the consent of their ex, but if this is unreasonably withheld, then the court has the power to dispense with their consent.

Can I force my ex to sell our house?

An individual cannot force another joint owner to sell the property without an order of the court. In the absence of an order, any sale must be agreed between the couple.

Joint tenants own the property in equal shares which gives them equal rights to the whole, whereas tenants in common means that each party owns a specific share of the property. This may be 50:50, but it could also be in other shares, and usually reflects how much one party has spent on the property or contributed to the deposit.

If you have purchased a house as tenants in common, you may have had a “trust deed” or “declaration of trust” drawn up at the time of purchase. This document sets out the percentage share of equity owned by each party, and can also set out the terms when one party can buy out the other or sell the property. Despite the differences of ownership, all owners still have to agree to the sale of the property.

A solution may be for one party to buy the other out for a fair market valuation of their share of the property. Obviously, it doesn’t remove the fact of one party’s refusal, but they may be in a position where they can buy out the share of the person who wishes to sell.

Dealing with a refusal to sell

If you own a house with your ex, you both have the right to make decisions about what happens to the property, including the right to sell it. But if one of you refuses to sell the house, it can put the brakes on your plans.

Before launching a court application, you may want to consider mediation. This is where a neutral third party can help you and your partner communicate and come to a mutually beneficial solution.

If mediation is not for you or has not been successful, and you have not reached an agreement with your ex about selling the property, you may be able to obtain a court order to sell the house. This is sometimes referred to as a “forced sale” and can be granted if the court finds that it is in the best interests of both parties.

Both joint tenants and tenants in common can apply for an order for sale, but it is a complex affair. Both names are registered on the deeds, which means the court will need to take into account the value of the property, the interests of its owners, and any other relevant factors that enable it to reach a decision.

What things do I need to consider before forcing a sale in a divorce?

There are a few questions you should ask yourself before applying to the court for an order for sale. These are:

  • What is the fair market value of the property?
  • How much is outstanding on the mortgage?
  • Are there any other debts secured against the property?
  • How will the sale proceeds be divided between you and your ex?

What does a court take into account in an order for sale application?

The court does not grant an order to sell the former family home lightly and the spouse applying for the sale must provide strong and compelling evidence that it is the only or best course of action.

The court will consider the following factors when making its decision:

  • Is the home owned jointly or in one person’s name only? Do the contributions made by each party reflect a different equitable division?
  • Who is responsible for ongoing payments and debts if the home is retained by one party?
  • What arrangements are the least disruptive to the children?
  • Does one party have greater need for the property to house them or their dependents?
  • Can the party fighting the sale afford to buy out the other’s share or obtain their own alternative housing?
  • Does one party need to be rehoused safely and away from the other because of domestic abuse?
  • Does either party have any health issues, unemployment, care requirements?

The court will decide if forcing a sale overrides factors in favour of one party retaining ownership and will consider the specific circumstances of the case in light of the above factors.

What happens if one party refuses to comply with an order for sale?

If the court grants an order for sale but one party refuses to cooperate, further legal action can be taken which can compel their compliance. This includes:

  • An injunction requiring the uncooperative party to allow estate agency viewings
  • Non-compliance could be treated as a contempt of curt
  • Formal enforcement procedures may be pursued if voluntary participation is not forthcoming after an order to sell is issued
  • As a last resort, forceful eviction from the property could be carried out provided this has the court’s approval.

Ideally, both parties should aim to work constructively together to reach a mutually beneficial solution, and seek legal advice as to their options. Obstructing or delaying the sale only leads to greater expense, anxiety, and potential penalties.

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