Q&As

A couple (A and B) have agreed to separate, sell their jointly owned home, and split the proceeds. A intends to use her share of the sale proceeds to purchase another property simultaneously with the sale of the joint home. Can the same solicitor act for both parties in respect of the sale and just for A for the purchase? Can A and B formalise their agreement as to sale proceeds immediately by entering into a declaration of trust?

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Produced in partnership with Helen Galley of XXIV Old Buildings
Published on LexisPSL on 20/03/2018

The following Property Q&A Produced in partnership with Helen Galley of XXIV Old Buildings provides comprehensive and up to date legal information covering:

  • A couple (A and B) have agreed to separate, sell their jointly owned home, and split the proceeds. A intends to use her share of the sale proceeds to purchase another property simultaneously with the sale of the joint home. Can the same solicitor act for both parties in respect of the sale and just for A for the purchase? Can A and B formalise their agreement as to sale proceeds immediately by entering into a declaration of trust?

It is not clear whether the couple are married or cohabitees, but we are told that the property in question is their home and is jointly owned. It is possible that when it was transferred to them that an express declaration of trust was included in the transfer to the effect that they were to held upon trust for themselves as beneficial joint tenants or, alternatively, as tenants in common in some agreed shares which need not be equal. If there was an express declaration of trust, it would be conclusive of their interests. If it provided that they were to hold as beneficial joint tenants that would mean that neither owns a divided share in the property but that if the joint tenancy was to be severed, they would, thenceforward, hold as tenants in common in equal shares. Section 36 of the Law of Property Act 1925 governs severance of a beneficial joint tenancy. Although there is a presumption in favour of severance, it would be sensible for the parties in this case who appear not to be in dispute, to record the agreement to sever in writing or for one of them to serve notice of severance on the other.

If instead of there being a beneficial joint tenancy there was an express statement in box ten of the transfer to A

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