TOLATA claims

TOLATA claims most often arise when unmarried couples split up and disagree about their rights in a shared home, where 1 partner is the legal owner. The non-owner may bring a claim saying there was a common intention to share ownership or they made contributions (like to the deposit or mortgage), giving them a beneficial interest. When they can’t agree, one partner applies to court under TOLATA to decide ownership or force a sale.

What is TOLATA?

TOLATA is a shortening of the Trusts of Land and Appointment of Trustees Act 1996. This is a statutory law that deals with disputes about property ownership.  People typically make TOLATA claims to :-

• Find out what share of a property they own

• Force the sale of a property when co-owners disagree

• Determine who can live in a property

• Get back money they've put into a property

• Establish rights to a property when their name isn't on the deeds

Who Does TOLATA Affect?

TOLATA may be important for :-

• Unmarried Couples - if you've lived with a partner but aren't married, and you separate with disagreements about property ownership, TOLATA helps determine your rights.

• Joint Homeowners - if you own property with someone else and disagree about selling it or who can live there, TOLATA applies to your situation.

• Family Members - if you've helped a family member buy property (like parents helping children or siblings buying together), TOLATA can protect your interests.

• Friends or Business Partners  - if you've bought property with friends or for a business venture and now have a dispute, TOLATA provides a way to resolve it.

How to prove you have rights to a property

There are several ways you might have rights to a property, even if your name isn't on the deeds:

• Written Agreements - if you have a formal document (like a Declaration of Trust) that shows what share of the property you own, this is usually the strongest evidence. Courts typically follow what's written in these agreements.

• Financial Contributions - if you paid money toward buying the property but aren't named as an owner, you might still have rights to it. For example, if you contributed to the deposit or mortgage payments, the court may recognise your interest in the property.

• Shared Understanding - sometimes there's no written agreement, but both parties understood that you would have some ownership rights. This can be shown through conversations you had about sharing ownership, actions like paying for renovations or splitting bills and/or other behaviours that suggest you both saw it as a shared property

• Promises Relied Upon - if someone promised you would have rights to the property, and you made significant decisions based on that promise (like moving in, paying for improvements, or giving up your own home), the court may enforce that promise.

Making a TOLATA claim - process

• Before Going to Court - going to court should be your last resort. First gather evidence of what you've contributed (payments, improvements, etc.), write to the other person explaining your position and what you want, consider mediation and get legal advice about the strength of your case

• Court Application Process - if you can't reach an agreement through mediation or negotiation you will need to start a claim, there will then be  a first court hearing, where directions are given for the parties to share relevant documents with each other, provide written statements from witnesses and if needed, get expert reports (like property valuations). Property disputes can take time to resolve, and if the case goes all the way to trial this could take between 9-18 months.

Applying for an order for sale

If you want the property sold, you need to explain:

• Why selling is necessary for you to get your fair share

• How you've tried to find alternative solutions

• Why your need to sell outweighs reasons to keep the property

Orders the court may make

The court has several powers in TOLATA cases and can:

• Declare exactly who owns what share of the property

• Order the property to be sold and proceeds divided

• Decide who can live in the property

• Require one owner to buy out the other's share

• Order compensation to be paid

When making decisions, the court considers:

• What you both intended when buying or investing in the property

• Why the property was purchased

• The welfare of any children under 18 living there

• The interests of mortgage lenders

If someone ignores the court's orders, enforcement action can be taken and someone else might be appointed to handle necessary paperwork.

What happens if children live at that property?

If children live in the home, their welfare will almost certainly impact how the court exercises its powers, especially if one parent asks to delay a sale and continue living in the property. In such cases, the court may consider Schedule 1 of the Children Act 1989 alongside TOLATA, allowing a parent to stay in the home for the child’s benefit, even if they don’t own it.

Risks with TOLATA claims

• Costs - TOLATA claims can be expensive. The losing party usually pays most of the winner's legal costs. If you refuse to try mediation, you might face cost penalties.

• Evidence Problems - it can be difficult to prove your case if you don't have written documents about property ownership or your agreement was only verbal and is now disputed or you can't find records of old payments or contributions and/or you need to prove exactly what percentage you should own