In this brief blog we are going to discuss the concern “ my name is not on the mortgage what are my rights”.
Who owns the property?
The name on the property deeds and mortgage will state who the legal owner is, but this doesn’t mean to say that the other person won’t have any legal stake in the property.
My name is not on the mortgage what are my rights?
There are many people who don’t have their names on the mortgage and are curious of what their rights are. Usually, if you contribute to the maintenance of the house or towards the mortgage then you may have what is known as a “beneficial interest” in the property and may be able to claim for this in the future.
The bad news is if your partner were to pass away and didn’t leave anything for you in their will then you could end up with nothing except you successfully sue their estate
Another thing to remember when consider is that if you don’t have your name on the mortgage or on the deeds of the property then your partner could kick you out of the house and you have no legal rights here.
If you are married then you have a better case and more rights as you are a spouse. If you are an unmarried partner whose name is not on the mortgage then your rights will be very limited.
Some of the things to consider if you are not on the mortgage and are concerned bout your rights:
Get a declaration of trust stating what interest you have in the property.
Get your partner to write you a will leaving the property to you. (they can only do this if they own the whole property)
Getting professional legal advice before a mortgage has been completed on is very important if your name won’t be on the mortgage and you are concerned about your rights.
If you are a co-occupier of a property or a cohabitant without any documents in writing then you may still be able to indicate that there was some beneficial interest in the property through implied trusts. These trusts are often known as “resulting” or “constructive” trusts.
What are Resulting trusts?
Resulting trusts is when a person contributes to the cost of purchasing the property without being a party to the actual transfer of ownership.
If a financial contribution is made at the time of purchase and it wasn’t a gift then you may have resulting trusts.
Some courts may also accept financial contributions which were made after the property was purchased but usually only if the financial contribution was contemplated at the time of the property purchase.
What are Constructive trusts?
A constructive trust is when there is implied or express agreement that the ownership of the property will be shared and there is some form of conduct to support this.
This could be making monthly contributions to the mortgage, to renovation costs etc.
The constructive costs can be based on agreements which have been drawn out or simply discussed but remembered. These agreements must usually have been made before the acquisition of the property although some courts may accept id it is after the property has been acquired.
The implied or express agreement must relate to the shared ownership of the property and not the occupation of the property. These agreements will usually need to display some detrimental reliance on the party who doesn’t own the property.
If a non-express agreement exists then a court may look at the basis of conduct and its implied meaning over the course of the relationship.
If the non-owning part was contributing to the mortgage payments or to the purchase price will indicate a shared understanding that the person paying would have an equitable interest in the property.
Contributions such as paying for renovations to the property or work that wouldn’t be expected of someone simply occupying the property may go a long way to prove constructive trusts were in place. Common DIY or expected housework will not count towards constructive trusts.
What happens if you are able to display beneficial interest?
If you are able to display beneficial interest then a court will look to determine the value of your beneficial interest based on the conduct and contribution you have made.
If there is an express agreement then a court will look at the value of equity assigned to you in the agreement and if none has been assigned the court will make a judgement based on all the factors to determine how much value your are due.
Any claim for a beneficial interest in a property, whether by a resulting or a constructive trust needs to be made under the Trust of Lands and Appointment of Trustees Act 1996.
These two trusts reflect your rights if your name is not on the mortgage.
My name is not on the mortgage what are my rights during a divorce?
If you are married and your name is not on the mortgage your rights are much better than a cohabitant or occupier of a property.
When two people get married, all their assets go into what is known as the matrimonial pot and all their assets go into this pot. They now both have an interest in each others assets.
If they were to divorce after marriage then the courts will have to work out how much of each asset goes to whom based on various factors including the length of marriage, each person’s age, whether they have any children and their earning capacity. When dealing with the family home, the Court will also consider the intentions that each person has in respect of the property.
The interest each part will have in the home will depend on the trusts mentioned above. How much each party contributed towards the purchase price, how much each person contributed toward the mortgage, the renovation costs etc. The Court will also want to know why the property is only in one person’s name. In some cases, it could be that the house was owned by one party before they got married and if so for how long has the property been owned? Is the other party not on the mortgage because they have a bad credit score? Is the property an inherited property? Does the one-party own the property outright? Was the property purchased after the couple got married?
These are all questions the court will want answers to before they determine each persons equity in the property.
Can I be kicked out during a divorce?
If your partner owns the property in their sole name and you are married then you have what is called “home rights”.
You can register your home rights at the land registry and this means you can not be kicked out of the house during a divorce. You can also move out of the house temporarily and move back if you wish.
Your home rights in your property also means that your husband or wife will not be able to just sell the property without getting your consent.
If the property is jointly owned with someone else then you may not be able to register your home rights (marital rights of occupation) and you can only register home rights (marital rights of occupation)against your matrimonial home and not on multiple properties.
Can you be on the deeds but not on the mortgage?
Yes, you can be on the deeds of the home but not on the mortgage but most mortgage lenders won’t agree to this.
What happens if you are married & The House is not in your name?
If you are married and the house is not in your name then you will still have your matrimonial right of occupation which means the house cannot be sold without your permission and you can continue living in the house till any court issues an order requesting you to leave.
Does a deed mean you own the house?
A house deed means you own the house. A house deed is a document lodged at the land registry which shows who owns a particular property. On the sale of a property, the seller must sign to transfer the deeds over to you. If you have a mortgage then the deeds of your property may be held by the mortgage lender.
Can I get a mortgage in my name only if I am married?
Yes, you can get a mortgage in your name only even if you are married. Your married partner may still have a claim on the property even if their name is not in the mortgage or title deeds.
In this brief blog we answered the question “ my name is not on the mortgage what are my rights”. If you have any further comments or thoughts around this subject then please let us know in the comments below.