V and W: Deferring sale under TOLATA until child grows up

Photo by Matt Seymour on Unsplash

The case V and W (ToLATA- -schedule 1 - whether to defer sale of jointly owned property) concerned the classic conundrum of so many TOLATA claims: should the sale of the property be deferred until the child of the parties finishes their education?

Her Honour Judge Vincent, hearing the case at the Family Court at Oxford, set out the essence of the case in the first paragraph of her judgment:

"The Applicant V is fifty, the Respondent W is fifty-three.  They were in a relationship from 1995 until 1st January 2017.  They have two children, D, who is nineteen and in her first year of university, and E, who is fourteen.  The parties bought a house together in July 1997 at [address redacted].  I am concerned with two applications:

(i) The Applicant has applied for a declaration under s14 Trust of Land and Appointment of Trustees Act 1996 (ToLATA) for declaration of the parties’ respective beneficial entitlement, and an order for sale;

(ii) The Respondent has made an application under Schedule 1 of the Children’s Act 1989 for the Applicant’s share of the property to be held on trust for the benefit of the parties’ son until such time as he finishes education."

Both parties continue to reside in the property.

The Respondent originally sought an 85% share of the property, but the day before the hearing he conceded that the declaration of beneficial interest should be of fifty percent shares in the property.

The remaining issue for the Court to determine was when the property should be sold. That, of course, is a matter for the court to have regard under s.15 TOLATA, in particular s.15(1)(c): the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home.

The Respondent applied for an order that his schedule 1 application be stayed until the arrangements for care of the parties’ youngest child E had been resolved, but Judge Vincent refused the application, primarily because that would cause unnecessary delay and uncertainty for the parties and their children.

As to when the property should be sold Judge Vincent found in favour of the applicant. Her reasons for this included the following:

1. The Respondent accepted that he owned only half the property, but he wished the Applicant to have no benefit from her half share for up to another seven or eight years.  He asked that she continued to pay for half the mortgage, yet had no intention of her deriving any benefit from that, for example by receiving an occupation rent either from him or a lodger.

2. There was a real risk that the Respondent would be unable to maintain the mortgage payments and keep the property in a good state of repair and upkeep, thereby putting his ability to safeguard the Applicant’s share at risk.

3. If the property were sold, both parties could rehouse themselves in rented accommodation, initially at least.

4. There was no good reason to require the parties to provide E with accommodation in his current, four bedroom, home, either until he finishes school or beyond that time.

5. Lastly:

"The Respondent asserts that he is E’s full-time carer but has no child arrangements order to that effect.  Having had regard to the evidence I have read and heard, I find that he has effectively prevented the mother from taking on the extent of a caring role she wished to for her children because she has not been allowed to be in the house alone with her children, and has been made to feel uncomfortable, excluded and unwanted.  Even taking into account those constraints, it would appear that the current situation most resembles a shared care arrangement and the Respondent is in my judgment in difficulties in establishing that he would be entitled to apply for an order under schedule 1 in any event."

Accordingly, Judge Vincent ordered that the property should be sold as soon as reasonably practicable, unless the parties were able to agree to either buying out the other's share.

You can read the full report here.