TOLATA

Disputes between unmarried couples regarding land and property (TOLATA)

It is quite common for couples who are not married to have a dispute regarding the ownership of their property when the relationship breaks down. Their recollections and understandings of historical agreements may differ. The most common disputes relate to the property in which the couple lived.

These claims are different to financial proceedings upon divorce as they are a civil action, rather than being heard by the Family Court. Claims are made under the Trust of Land and Appointment of Trustees Act 1996 (“TOLATA”) and ordinarily follow the Civil Procedure Rules in the Chancery Division.

Individual TOLATA claims are very fact specific, and the evidence required from both sides is often detailed. The fundamental approach taken by the courts in TOLATA claims is that if the property is held in joint names at the Land Registry, and there is no other document recording ownership as anything other than 50-50, then it will be presumed at the outset that the property is owned in equal shares. Whilst this presumption can be a challenge to overcome, it does not mean that other agreements were not reached by the couple, or inferred by their actions, which may have led to a different understanding.

Equally, it is possible under TOLATA for one party to obtain a beneficial interest in a property which is not registered in their name.  Often works being carried out to a property without charge, or financial contributions being made by one party, are a feature of TOLATA cases. There should be a common intention between the parties to vary the ownership, which one party then relied on to their detriment.

The parties are expected to produce comprehensive evidence, whether it supports or hinders their TOLATA case. There is no mandatory provision for a without prejudice settlement hearing, as there would be in financial proceedings upon divorce.

The court under TOLATA can make orders determining the exact nature of the ownership, regulate the occupancy of the property during the proceedings and order that the property is sold, dividing the equity in accordance with the determined ownership.

TOLATA claims are subject to cost liability orders which can often be substantial. Therefore, the losing party is likely to pay the other’s legal fees, which must be borne in mind before embarking on any claim. Any historic agreements, the actions of the parties during the relationship and the available historical evidence will have to be considered carefully in detail at the outset.

If you would like to discuss TOLATA in more detail with our family lawyers in London or if we can assist you with general legal advice, please call us on 020 3405 0060 or send us a message to arrange your free initial consultation.