When unmarried couples’ relationships break down, the separation is not governed by the same laws as married couples. Therefore, if assets are in dispute, they must be dealt with according to the rules of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).

Disputes are commonly centred around the amount of money each party has invested into a property they have purchased together, and splitting gains from selling it. There may also be a dispute because one party refuses to leave the property, and disagreements over the value of the asset.

If you think you have a financial interest in a property and cannot agree a solution, you may be able to make a TOLATA claim to secure the return of your interest by way of a lump sum payment, obtaining the right to occupy the property, or an order for sale.

What are TOLATA claims?

These are claims that determine the ownership of a trust of land that has been under joint or sole ownership. These claims are made to either a county court or the high court and follow the Civil Procedure Rules (CPR).

There are different types of trust that arise over property and to bring a claim, you must demonstrate that one of the following exists:

  • Express trust – whether holding the property as joint tenant or tenants in common
  • Constructive trust – if there was an express agreement, understanding or arrangement between you and your ex that you were to have an interest in the property, then a constructive trust will arise in your favour
  • Resulting trust – this may occur solely by operation of law. This means that if the claimant provides money and the property is registered in the sole name of the other party, there is a presumption of a resulting trust in favour of the claimant
  • Estoppel claims – in reliance upon a promise by the defendant, the claimant acts to their detriment. For example, if the claimant came into an inheritance during the relationship and agreed to fund an extension on the property in return for the other party promising to put their name on the title deeds, or share the property in some other way, the claimant may be able to claim estoppel.

How do I make a TOLATA claim?

If you have lived with your ex, or otherwise have a financial stake in a property, you may be able to make an application to court to resolve your dispute. Therefore, if you are found to have a beneficial interest, whether that is in equal or unequal shares, the court can use TOLATA to impose a constructive trust on the property to compensate you in one of several ways. This could be via the right to occupy the property, or through an order for sale to free up funds to compensate you for your share.

When you make a TOLATA claim, you must set out what actions you performed which would entitle you to a share of the property in question. This may be that you contributed financially to its purchase, maintenance, or refurbishment.

How the property is held and registered at the Land Registry is also relevant to the case. Perhaps the property is held on a 50:50 basis as joint tenants, or as tenants in common in equal or some other specified share.

If you can prove there was a “common intention” to share the property, and this was either discussed or implied between you and your ex, then this will bolster your case. In addition, if you can evidence you had been encouraged to act to your detriment, such as giving up your own property to move into the property in question, or paying some of the mortgage, this will add extra weight to your case.

What can I ask the court to order in a TOLATA claim?

A TOLATA claim can be issued to do the following:

  • Force the sale of the property/land
  • Reoccupy the property when an ex refuses to leave
  • Determine the share each party owns

A TOLATA claim can also be issued by parents or grandparents wanting to recover their financial interest in the property.

TOLATA claims can be lengthy and expensive. However, because of the way such claims are made, the process allows for early out of court settlements or those made via mediated agreements. It is possible to have these endorsed by the court, provided the outcome is fair and agreed between both parties.

Once proceedings are embarked upon, the procedure comprises three main stages: disclosure, inspection, and evidence. The court manages the process throughout and will list a trial, where all the written and oral evidence is considered, if the case does not settle.

During the course of proceedings, you may be advised to make or respond to a Part 36 offer. This is an offer to settle, which, if made in accordance with certain rules, carries costs consequences if refused by the party to whom the offer is made (depending on the outcome of the case). A Part 36 offer will not be shown to the judge, but will be disclosed at the end of the trial when the court is asked to consider who should pay the costs of proceedings. Part 36 offers are often used as a tactical weapon to attempt to settle a case without potentially compromising it.

Can a TOLATA claim be defended?

The best defence for a TOLATA claim is to prevent one from happening in the first place by taking pre-emptive measures with a partner who comes to live with you. To do this, you should:

  • Remain consistent with your intentions for your property, and, where possible, set these out in writing before starting to live together.
  • Keep a record of any finances that other parties have contributed into your property and whether these funds were given as a gift or on a transactional basis.
  • Keep current and accurate records of your property and the financial interactions you have with your partner about it. The clearer your accounting and evidence, the easier it will be to defend a TOLATA case.

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