There is no simple answer. Try to agree it with your former partner/co-owner. In the absence of an agreement you should try mediation.
Proceedings under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) take over a year to conclude and are very expensive as the recent case of Quaintance v Tandan (2012) EWHC 4416 (Ch) demonstrates.
Mr Quaintance and Ms Tandan began to cohabit in 1992 and purchased a property in 1999. The property was registered in joint names. Ms Tandan paid the whole of the deposit and the costs of purchase. Mr Quaintance left the property 6-12 weeks after the date of purchase and that was the end of his contribution.
In 2000 the mortgage fell into arrears as Ms Tandan was unable to afford it. It was repossessed in 2005 and the mortgagee sold the property, paying half the net proceeds to Ms Tandan and freezing the other half pending an appeal by Mr Quaintance.
At the time of purchase there was no doubt that the parties intended the property to be held in joint names but they did ask for a Declaration of Trust to be drawn up which stated that they held the property as tenants in common in equal shares. The document remained unsigned. At first instance the Judge determined that the original intention (at the time of purchase) was equal ownership but Mr Quaintance abandoned the property which was evidence of a change in intention. The Judge then determined that Ms Tandan should receive the entire proceeds.
Mr Quaintance appealed stating that the first Judge had made an error and that he should be entitled to 50%. He said there was no evidence that the common intention had changed since the date of purchase and they had both caused the mortgage arrears by failure to pay the monthly payments. At the appeal hearing the Judge found the Court below was entitled to find a change in intention brought about by Mr Quaintance’s conduct.
It is an important case as it emphasises that a Judge is perfectly entitled to say that a common intention at the time of the purchase had changed in the light of subsequent behaviour and without any real discussion between the parties or documentation. It emphasises the maxim which was propounded in the well known case of Stack v Dowden that the “whole course of dealing in relation to the property” is of relevance.
From a layman’s point of view it seems to introduce a concept of abandonment as relevant to changing a common intention at the time of purchase. Both parties failed to pay the mortgage but Mr Quaintance’s failure was seen in the light of his abandonment of Ms Tandan and the home such that Ms Tandan was entitled to the entire net proceeds.
All cases are fact specific but it is yet another example of the importance of accurately recording interests in property including a fresh record of those interests at the time of separation.