The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) deals with the way in which disputes between co-owners of a property are dealt with and is commonly used when unmarried couples are in disagreement over property ownership.

Unmarried couples who separate do not have the same rights as married couples, where the starting point for the court is an equal sharing of assets.

For cohabiting couples, entitlement to a share in the land must be shown and the courts will use TOLATA to decide:

• Who has the right to occupy the property;
• The extent of the parties’ ownership.

The court does not generally have the discretion to vary co-ownership or adjust the shares that are owned.

Claims will either be on the basis of a dispute over the facts of the case, known as a Part 7 claim, or a dispute over the legal principles involved, a Part 8 claim.

Different types of property ownership

Unmarried couples can own property in a number of different ways and TOLATA may be applied to ascertain their rights.

Joint legal owners

When people buy a property together, they will own it either as joint tenants or tenants in common. A joint tenancy is where the whole property is owned together by those named as owners, with no specified shares. A tenancy in common gives each owner a set share of the property, such as half or a quarter ownership.

The court will not vary this ownership under TOLATA unless it can be shown that there was a mistake or fraud involved.

Joint owners with no declaration of trust

If joint owners did not make any declaration of trust, or the declaration of trust stated that the property was owned in unequal shares, then the starting point is an assumption of 50:50 ownership, which will only be altered if there is evidence to the contrary.

Property owned by only one party

Where one party has legal ownership, the courts will look for a common intention of sharing the property, such as discussions where the non-owner is assured the home will be shared, and that the party who does not have ownership acted on that intention to their detriment.

Examples include where money has been put towards the purchase price or property improvements paid for by the non-owner.

Making a TOLATA claim

If you wish to make a claim under TOLATA, it is usually advisable to first attempt alternative dispute resolution. This is a way of attempting to find an acceptable solution without involving the courts. A trained and impartial mediator will work with you and the other party or parties to help you find a way forward. You are still entitled to have a legal representative present to advise you and ensure that your rights and interests are protected. This is usually faster and more cost-effective than going to court and can help minimise damage to a relationship, which can be particularly important where children are also involved.

If alternative dispute resolution does not resolve the issue, then the next step would be for a pre-action letter to be sent to the other party or their solicitors. Any evidence and relevant documents will be included. It may still be possible to negotiate a settlement at this stage.

If the matter does continue to court, then the papers will be put before a judge for them to decide the issues.

What the court may order

The court will consider all of the circumstances of the case, including the following:

• The parties’ intentions in respect of the property and its ownership;
• The purpose of any trust entered into;
• The welfare of those involved, in particular, any children who live at the property;
• The interests of any creditors.

The judge will consider who has legal and beneficial ownership of the property and in what shares the property is held by them. The ruling is likely to cover the following:

• Who is entitled to occupy the property;
• The extent of each party’s ownership;
• Whether the property should be sold.

Making a TOLATA claim with Witan Solicitors

If you are separating and you believe that you have an interest in property that is not being properly observed, we can discuss the situation with you and advise you on your options. For more information about our services, see our page on bringing a TOLATA claim.

At Witan Solicitors, our expert family lawyers have a strong track record of success in enforcing our clients’ rights and obtaining the right outcome for them and their families. If you would like to speak to one of our family law team, email us at info@witansolicitors.co.uk or fill in our contact form. We have offices in Birmingham, Northampton and London.