Case study: What should you do if you own your home jointly with your ex but you are no longer in contact?
This may seem an unusual question but it is a surprisingly common situation.
Jane and Peter buy a property in joint names, decide to separate shortly afterwards and Peter moves out. Time flies and, for a variety of reasons, they no longer communicate with each other so Jane loses touch with Peter altogether and has no idea where he is living or even how to contact him. She remains in the property and continues to pay the mortgage repayments and all of the other outgoings and, over the years, carries out work to the property which helps to significantly increase its value.
What happens when Jane wants to sell or remortgage the property? The quick answer is that she cannot do either of these things without Peter’s consent as long as he remains a joint legal owner and he may have a beneficial interest in the property.
The first step is that Jane needs to take all reasonable steps to find Peter and hopefully they can then agree the extent of his interest (if any) and take the necessary steps to remove his name from the legal title as required.
Jane should start with any past links e.g. known friends, family or previous employers or any previous addresses she had for him. Social media can also be an extremely effective way to make contact. In the absence of any progress through these routes, private investigators can often trace people for relatively small fees. Private investigators can be found through the Association of British Investigators (www.theabi.org.uk).
In the absence of an agreement, she can apply to the court to establish that he no longer has an interest in the property. However, Peter would usually need to be served properly with Jane’s application before it can be heard by the court. If Jane has taken all reasonable steps to find Peter’s current address and can’t, the court will need to consider if there is any alternative method by which Peter should be served (e.g. by email or even over Facebook). Only in very exceptional circumstances will the court dispense with the need for service altogether. Jane will therefore need to be able to evidence very clearly what steps she has taken to try to find him before that is an option.
If she can locate him, it may be that they cannot agree the extent of his beneficial interest in the property because. As Peter is a joint legal owner, the starting presumption is that he owns 50% of any equity. The onus will be on Jane to prove her case that she owns the majority, or even all of the equity if that is now her case.
There are potentially several competing arguments in this situation. As with all property disputes, it will be necessary to look at all available evidence about who paid what and what their intentions were, both when the property was purchased and when Peter moved out.
The costs of litigating in these circumstances can very easily become disproportionate, depending on the amounts involved, so it is important to take proper legal advice from the outset and, if you are able to do so, to find a compromise without the need to go to court.