Covid-19 Joint Property Rights
- AuthorJohn Graham
It’s been drummed into all of us: stay at home. But what if home is shared with someone that you don’t want to share it with? What can be done?
If domestic abuse is a factor, there is clear guidance. The government advice is that victims of abuse can leave home and seek refuge. All the powers of the court are available, including the making of non-molestation orders and occupation orders. Applications will be given priority status and heard in one of the courts remaining open.
However, these orders are usually available only where behaviour is an issue and the court needs to intervene to prevent harm. Occupation orders are a temporary solution to urgent problems - they do not alter property rights. Also, although s.40 Family Law Act 1996 gives the court power to make orders about payment of outgoings on a property when an occupation order has been made, the Act contains no machinery to enforce any such orders. The omission is well known and was identified by the Court of Appeal as a ‘serious omission which required urgent alteration’ in the case of Nwogbe 20 years ago - but nothing has been done.
What if there is joint property and the owners are unable to agree on how to deal with it, and how to pay the outgoings if it is to stay in joint names? The court’s powers in abuse cases are of limited, if any, help in a property dispute.
The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) is most often used in a domestic setting to seek an order for sale of a joint property. However, the Act has other provisions which can be used to regulate the position where a property remains in joint ownership and is not to be sold, such as keeping a property for the use of one joint owner without depriving the other owner(s) of their asset. Under s.13, trustees of land may exclude or restrict the right of one of them to occupy, although they may not act unreasonably. Exclusion may only happen with the consent of the excluded person or a court order. Conditions can be imposed as to payment of outgoings and compensation payments to the excluded person.
For example, in the 2001 case of Rodway v Landy, two doctors who jointly owned and ran a medical practice ended their partnership and disagreed on how to deal with the jointly owned practice building. Applying s.13 and other provisions of TOLATA, the court divided the property into two, each for the exclusive use of one of the doctors, and ordered them to pay the cost of conversion in equal shares. An appeal against the decision was dismissed, the Court of Appeal ruling that the scheme was within the court’s powers and the scope of TOLATA.
With some creative thinking, and a property large enough to be subdivided, there are options which could allow separated property-owners their own space while still ‘staying at home’.
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