The legal rights of someone whose name is not on the deeds
We are often contacted by co-habitees and family members asking, ‘What are my rights if my name is not on the deeds?’ These are often people who have a legal interest in the property where they reside, but the legal title is registered at the Land Registry in the name of another person.
These “single name cases” as they are known, can present difficulties for the person whose interest is not registered So, what are your rights if your name is not on the deeds?
In this ‘How-To’ guide we look at how a legal claim can be brought to protect your interest in the property even if your name is not on the deeds. Our guide focuses on claims where the parties are not married. If you are married and need guidance then Paul Jordan, Head of our Family Team, [email protected]; will be able to assist you.
In single name cases (as opposed to situations where both owners’ names are on the deeds) the starting point is that the ‘non-owner’ (the party whose name is not on the deeds) has no rights over the property. They must therefore establish what is called in law a “beneficial interest”.
To establish a beneficial interest, the Court will look for any agreement, arrangement or understanding expressly reached between the parties that the property is to be shared, which the non-owner has relied on to their detriment. If there is insufficient evidence of this, then the Court may say that there was a ‘common intention’ to share the property beneficially. That intention can only be inferred from direct contributions towards the purchase price or later mortgage payments by the non-owner. This test was established by the case of Lloyds Bank v Rossett over 20 years ago. However the Courts have sometimes departed from a strict application of this principle if an unfair result would otherwise arise.
By way of example, in other cases the Courts have agreed that a non-owner had acquired a beneficial interest:
- by paying for household expenses which would otherwise have been met by the owner so that the owner could afford to make the mortgage payments, even though there was no express agreement or direct contribution by the non-owner;
- where an agreement to benefit five young children was made and then broken but where the children were not aware of the agreement at the time and made no direct contribution; and
- where a daughter was left the beneficial interest of her deceased father rather than the property being left to the other co-owner, and where again there was no express agreement at the time between the parties or a direct contribution by the non-owner.
In all of these cases there was no express agreement or direct contribution by the non-owner, however a beneficial interest was still established and the claims succeeded. Different legal principles apply if an engaged couple terminate their engagement or if there is an express Declaration of Trust or there is a commercial context. It is therefore imperative that specialist legal advice is sought in every case.
The other popular route where your name is not on the deeds or the registered title is to pursue a claim for ‘proprietary estoppel’. In simple terms, estoppel arises where a promise has been made by the property owner who then goes back on their word. A successful claim of proprietary estoppel depends on three elements:
(1) representation or an assurance of rights;
(2) reliance on that representation; and
The overall theme is the avoidance of unfairness and achieving a result where the detriment and the remedy are proportionate. The subject matter of the representation or assurance does not need to relate to a specific existing asset, provided the scope of the intended expectation can be identified with reasonable certainty. Estoppel is a complicated legal principle and expert legal advice should always be taken.
Free Case Assessment
So, if you want to know what are your rights if your name is not on the deeds then the first step is to contact us for a free case assessment. We will guide you on what rights you are likely to have, the steps that will need to be taken to enforce those rights and the funding options available. We can often deal with claims on a No Win No Fee basis.
Once a case assessment has been carried out and funding arrangements agreed we will send a Letter of Claim to put the other party on notice of the claim and to seek the appropriate legal remedy.
Alternative Dispute Resolution
All claimants have an obligation to consider alternative dispute resolution (also known as ADR) which includes making written offers to settle and mediation. Mediation is often very effective at achieving a favourable settlement without the time, stress and cost of court proceedings and we have a very high success rate at mediation. We therefore encourage mediation at the earliest opportunity.
In the rare instances that settlement cannot be achieved then we would prepare court proceedings. Insurance can be taken out against the risk of an order for legal costs being made against you
A Final Thought
When a property is not registered in joint names or in the correct shares it may be due to a solicitor’s negligence. For example the solicitor may have failed to take instructions properly or prepared the Transfer/Deed of Trust incorrectly. In those circumstances we can refer your case to our specialist professional negligence team.
Sometimes claimants are put off from bringing a professional negligence claim as they believe it would take money away from the party who benefitted by receiving more than they were entitled to due to the solicitor’s negligence. However that is not the case, as any professional negligence claim is usually paid by the solicitor’s insurers and therefore it would not affect the other party’s entitlement. As such a professional negligence claim can achieve recompense for the disappointed party and leave the “windfall” for the defendant intact.
Call Us Today
So if you wish to find out what your rights are if your name is not on the deeds call us for a free case assessment on 0808 139 1599 or email us at [email protected]