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Your rights if you or your partner own your home

If you and/or your spouse, civil partner or partner own your home, your rights will vary depending on whose name is on the title deeds and whether or not you are married. These factors affect who is responsible for paying the mortgage and other household expenses, what happens if either of you wants to sell the home, and what happens if your relationship breaks down or one of you dies.

Who owns the home?

The owner of a property is the person whose name is on the title deeds. Title deeds are registered with the Land Register (Register of Scotland) or recorded in the General Register of Sasines. These registers contain information about the ownership of all land in Scotland.

A property can be owned by just one person (a sole owner), or it can be owned jointly. If you and your partner own your home together, both your names will be on the title deeds. The person whose name is on the title deeds doesn't necessarily need to be the person who has paid for the home or taken out a mortgage to pay for the home - although the details of the mortgage will appear on the title deeds themselves.

What are my rights?

We own our home jointly

If you and your spouse, civil partner or partner own your home together, neither of you can:

  • force the other to leave without a court order
  • rent out or sell the property without getting the other's agreement or a court order
  • take out a loan against the property (for example, a second mortgage) without the other's agreement.

We are married or in a civil partnership and one of us is the sole owner

Even if your name is not on the title deeds, you automatically acquire occupancy rights to the family home when you get married or register a civil partnership. This means that neither of you can:

  • force the other to leave without a court order
  • rent out or sell the property without getting the other's agreement or a court order
  • take out a loan against the property (for example, a second mortgage) without the other's agreement.

We live together and one of us is the sole owner

If you and your partner live together but only one of you owns the home, the non-owner will have fewer rights to live in the property than a joint owner, a husband or wife or a civil partner. Your partner may be able to:

  • evict you without getting a court order
  • rent out or sell the home without your consent
  • take out a loan against the property without your consent.

However, even if your partner is the sole owner you can apply to the court and ask to be given occupancy rights in the home. Occupancy rights allow you to stay in the home even if your partner wants you to leave. They will also make it harder for your partner to rent or sell the home without your permission. You can apply for occupancy rights whether you are a same sex or opposite sex couple.

Who pays for the running of the home?

We own our home jointly

As joint owners, you will both be jointly and individually liable for all the expenses to do with the home, such as council tax, utility bills, repairs and any improvements you've both agreed on.

One of us is the sole owner

If only one person owns the home, they are responsible for paying for any expenses to do with the property, such as repairs and improvements. The non-owner can still choose to make payments towards the running of the home, and this can help you secure your position within the home.

You will both be jointly and individually liable for paying the council tax and utility bills (gas and/or electricity).

Who is responsible for paying the mortgage?

We own our home jointly

If you own your home jointly, it is likely that you will have a joint mortgage as well. This means that you are both jointly and individually responsible for paying it, so if one of you cannot or will not pay your share, the other will have to pay it instead. This is the case even if one of you is not currently living in the property.

If you have a joint mortgage, you won't be able to alter the terms (for example, the length of time you have to pay the money back or the amount you are borrowing) without the other joint owner's permission.

We are married or in a civil partnership and one of us is the sole owner

In this case, the owner is still solely responsible for paying the mortgage (unless you have a joint mortgage). However, the non-owner has the right to make payments towards the mortgage. This can be helpful if the owner moves out or stops paying the mortgage. However, the non-owner won't be held responsible for missed payments unless the court has ordered that they pay them.

We live together and one of us is the sole owner

If you live together, only the sole owner is responsible for paying the mortgage. However, the non-owner can choose to make payments if they want or need to, and this can help them secure their position within the home.

Bear in mind that if you later split up, the non-owner won't be entitled to a financial share of the home just because they've made payments towards the mortgage.

Can we get help to pay mortgage interest?

In certain circumstances, you may be able to get help to pay your mortgage interest. Either spouse or partner can claim this, regardless of whether you are joint owners, the sole owner, or a non-owner.

Who can make changes to the mortgage?

We own our home jointly

If you have a joint mortgage, you won't be able to alter the terms (for example, the length of time you have to pay the money back or the amount you are borrowing) without the other joint owner's permission.

We are married or in a civil partnership and one of us is the sole owner

If you are married or in a civil partnership, the sole owner will need to get their husband or wife's permission to:

  • take out a second mortgage on the home
  • take out an advance on the existing mortgage.

The sole owner can, however, apply to the court for an order allowing them to make changes to the mortgage without their partner's permission. If the court grants the order it may also attach conditions to it. For example, it might allow the sole owner to take out a second mortgage without their partner's permission, but only on the condition that the second mortgage is for no more than £10,000 or that it is paid off by a certain date.

It's best to get advice from an independent financial adviser or money advice centre before agreeing to any changes to the mortgage.

We live together and one of us is the sole owner

If you live together, the sole owner does not need their partner's consent to make any changes to the existing mortgage or to take out a new mortgage on the house, even if their partner has occupancy rights.

If I contribute to household expenses, does this mean I have a financial share in the home?

No. It's important to remember that if you and your partner are not married or in a civil partnership, any money you pay into the home (for example, for the mortgage or repairs) will not entitle you to a financial share unless you have a legal agreement that specifically says that it does. You may wish to draw up an agreement when you first move in.

What if we want to sell the home?

Even if you are the sole owner of the home, you won't be able to sell up without your spouse or civil partner's permission. The page on selling the family home explains who has the right to sell the home, and what factors affect the share you will each receive.

What happens if we split up?

If you split up, your rights to stay in the family home or to make your spouse or partner leave will depend on who owns the home and whether or not you are married or in a civil partnership. The section on relationship breakdown has more information.

What happens if my partner dies?

The section on death in the household has more information on what happens if someone you live with dies.

We own our home jointly

If one owner dies, the other owner will only inherit their share of the home automatically if you included a survivorship clause in the legal paperwork when you bought the home. Otherwise, if aren't married or in a civil partnership and your partner hasn't made a will, their share in the property may go to someone else. This means that if you don't have a survivorship clause but you do want your partner to inherit your share of the home, it's important that you make a will.

We are married or in a civil partnership and one of us is the sole owner

If your husband or wife dies without making a will, you will automatically inherit the family home. If they have made a will and have not left you anything, you may be able to claim rights to the home. Get advice from a solicitor if you are in this position.

We live together and one of us is the sole owner

If the owner dies without making a will, their partner won't automatically inherit the home. Therefore if the owner wants to ensure that their partner can continue to live in the home after their death, it's important that they make a will.

What if the lender tries to repossess our home?

If you are having problems paying the mortgage, you should talk to your lender as soon as possible. If you don't, your lender may try to evict you and sell your home.

Get advice from the National Debtline or a money advice agency if you are having difficulty paying your mortgage. An adviser may be able to negotiate with your lender to make your payments more manageable and prevent the repossession. An adviser may also be able to help you apply to the court to suspend the repossession action. Even if your spouse or partner is the owner and your name is not on the title deeds or mortgage, you should have a right to do this.

The important points

  • The owner of a property is the person whose name is on the title deeds.
  • If you and your partner own your home together, both your names will be on the title deeds.
  • Joint owners will both be jointly and individually liable for all the expenses to do with the home.
  • If your husband or wife dies without making a will, you will automatically inherit the family home.

Speak to a Shelter Scotland adviser

Call Shelter Scotland's free housing advice helpline

0808 800 4444*
9am-5pm, Monday to Friday

Email an adviser

You can also email a housing adviser. We aim to respond within three working days.

*Our advice line is free to call from landlines and all six of the main UK mobile networks, Virgin, Orange, 3, T-mobile, Vodafone and O2, but charges may apply from any other network


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