Property rights of cohabitees who are separating

By Sarah Oakley

Legal property ownership is not always straightforward, especially where the parties are cohabitees or there is an ownership disagreement. Unfortunately, an unmarried couple’s legal rights are relatively weak if they are cohabitees and if they separate, they do not have the same rights as a married couple.

Property rights will typically be determined by how the property is owned. Where there is more than one legal owner, the joint owners hold the property on trust. The trust can be created in three ways:

• by way of a formal declaration of trust
• by a transfer of the property to two or more people
• by virtue of the parties’ conduct.

If there is more than one legal owner registered at the HM Land Registry, the property can be held by beneficial interest as joint tenants or tenants in common. With joint tenants in equity, each of you owns the whole property with no specific shares. With tenants in common, each owner will have a specific share in the property. You can find out which yours is by checking the registered title of the property at HM Land Registry.

However, ownership is not always conclusive from land registry records alone. For example, the parties have bought the property, the registered title says they are beneficial joint owners, but they gave unequal contributions to the purchase price. It may be treated that there is an implied trust and the mutual intention was to be tenants in common. Evidence of this includes who paid the deposit and mortgage instalments.

Similarly, a constructive trust may arise where it is unfair that one party, because of their conduct, denies the other their beneficial interest. Each case is considered on its own merits, so it is important to gather as much evidence as possible.

If an agreement cannot be reached, you can apply to the courts to determine the nature of the property ownership. This comes under the 1996 Trusts of Land and Appointment of Trustees Act (TOLATA). It is a complex area of law, so it is wise to seek specialised legal advice.

For more advice contact Sarah Oakley on 01722 410664 or email This email address is being protected from spambots. You need JavaScript enabled to view it.

By Sarah Oakley