A typical case that arises quite frequently is when an unmarried couple, with or without children, decide to put an end to their relationship, but they do not know how to dispose of the house or flat that they once bought together, and which is usually encumbered by a mortgage of varying amounts. It is also very often the case that several siblings have a property in common because they have inherited it and there are disputes about it.
In the case of a couple with children, if you go to court to regulate relations with them, the most normal thing is that the use and enjoyment of that home is assigned to the person who is granted custody of the children, until they are older and financially independent, or until new measures are taken in court. In cases of shared custody, the use and enjoyment of the home will normally be attributed to the person of the couple who, due to their economic situation, has the greatest need to make use of it but, in this case, the attribution may be conditioned to the passing of a certain period of time, or to the improvement of the economic situation of that person.
However, the right of use and enjoyment is one thing, and the right of ownership is another and independent right. On another occasion we will talk about who has the use and enjoyment of a property in other cases, such as when it belongs to several siblings, having been acquired by inheritance. If we are talking about ownership, the fact is that any person who has a property in joint ownership with others is entitled to request its division, either by acquiring his share from the other joint owners, or by selling it to a third party and dividing the price.
If there is no out-of-court agreement, because the co-owners refuse the division, because none of them can buy their share from the rest, or because no third party buyers appear, the only way left is to apply for the division in court.
In the judicial process, after valuation of the price of the property minus its charges, it can culminate in the acquisition of the property by one of the co-owners, who thus acquires a debt with the rest equivalent to their share in the property; or with the acquisition by auction by third parties, with the price being divided among all the co-owners.
A curious and undesirable situation that often occurs, due to the real estate binge of the past, is that the mortgage value of the property is higher than the market price of the property. In this case, third parties would not be able to participate in the auction, since the auctioned item would not really have any economic content, it would actually be a debt auction (the part of the mortgage that remains to be paid once the price at which the property is valued has been deducted). What you can do is to award it to one of the co-owners, so that the amount of the mortgage that exceeds the value of the property would have to be paid equally by all the owners.
At Montosa Solicitor we study the possibilities of your specific case and advise you on the path to take in this type of situation.
