If you’ve separated from a partner you weren’t married to, and there’s a dispute about who owns what share of the property you lived in together, the law treats you very differently from a married couple going through a divorce. There’s no automatic right to a share, no financial settlement to fall back on, and no such thing as “common law marriage”. The name on the title deeds will often carry significant weight, but it is not always decisive. The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), is the legal mechanism that allows the court to look beyond the legal title and determine each person’s beneficial interest in the property.
Led by Sobiah Hussain, Head of Private Family Law, our team advises clients across England and Wales on bringing and defending TOLATA claims, whether you’re trying to establish a share in a property you’re not named on, defending a claim brought against you, or trying to force or resist a sale.
When Might You Need a TOLATA Claim?
Although TOLATA claims are most commonly associated with former unmarried couples, the legislation also applies to disputes involving family members, friends or business partners who jointly own property or claim an interest in it.
In practice, the trigger is nearly always the same. A relationship breaks down, a family falls out, one person wants to sell the property or recover the money they have invested, and the parties cannot agree what should happen next.
Common situations include:
- Your former partner refuses to sell the property.
- You contributed towards the deposit, mortgage or major renovations but are not named on the title deeds.
- You disagree about the percentage share that each of you owns.
- One party wishes to buy the other out but cannot agree a valuation.
- Family members disagree about ownership after contributing towards a property purchase.
- A co-owner has died and there is a dispute involving the surviving owner or the estate.
Do You Have a TOLATA Claim?
Whether you have a claim will depend on the property’s ownership and the evidence available.
Where a property is held in joint names, the starting point established by the House of Lords in Stack v Dowden [2007] UKHL 17 is that the beneficial interest is presumed to be held equally, although that presumption can sometimes be displaced. Where a property is held in one person’s sole name, the person who is not named on the title will usually need to establish that there was a common intention for them to have a beneficial interest and that they acted to their detriment in reliance on that understanding. Evidence may include contributions towards the deposit or mortgage, significant renovation works and other conduct capable of demonstrating that intention.
These cases are highly fact-specific and turn on the parties’ intentions, financial arrangements and the available evidence.
How Our TOLATA Solicitors Can Help
TOLATA disputes often involve much more than establishing who owns what share of a property. Questions frequently arise about whether a property should be sold, how ownership can be proved and whether the dispute can be resolved without court proceedings.
In many cases, court proceedings can be avoided altogether. We regularly advise clients on the strengths and weaknesses of their position, negotiate with the other party and help resolve disputes through negotiation or mediation. Early legal advice can often avoid the cost, delay and uncertainty of contested litigation.
Where agreement cannot be reached, we can prepare the necessary pre-action correspondence, including a Letter Before Claim, gather the evidence needed to support your case and represent you throughout TOLATA proceedings. Bank statements, mortgage records, conveyancing documents, messages discussing ownership and evidence of financial contributions can all prove important. The earlier this evidence is identified and preserved, the stronger your position is likely to be.
Whether you are bringing or defending a TOLATA claim, our team can provide clear, practical advice at every stage of the process.
Sobiah Hussain
Partner, Solicitor-Advocate, Collaborative Law Practitioner & Head of Private Family Law
Meet the teamMeet the Private Family Law Team
Sobiah Hussain
Partner, Solicitor-Advocate, Collaborative Law Practitioner & Head of Private Family Law
Irrum Shah
Senior Associate Solicitor
Alison Page
Senior Associate Solicitor
Emma Macdonald
Chartered Legal Executive
Frequently Asked Questions
A TOLATA claim (or Trusts of Land and Appointment of Trustee’s Act Claim) are claims which determine the ownership of a ‘trust of land’ that has been under joint ownership or sole ownership.
Through TOLATA, the court can decide the ownership of a property when there is a dispute during the separation of an unmarried couple. The Court will determine the extent of both you and the other party’s (for example, your ex-partner) interest in the land or property. This could result in ordering the sale of the property, and how the proceeds of the sale should be distributed between you both.
A ‘Trust of Land’ is land that is held by a legal owner or owners on trust for one or more beneficial owners.
Whilst a claim under TOLATA is not restrictive of who can make it, the majority of claims tend to be from unmarried couples separating from a relationship. This is because unmarried couples are not subject to the same legal protections that married couples are.
It is possible for cohabiting family or friends to make a TOLATA claim, however it is more common for couples to claim.
When making a TOLATA claim there is a standard process that you must follow. This process includes:
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- Letter Before Claim – a letter setting out the claim, along with evidence.
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- Response – the defendant of the claim, or recipient of the letter must reply and set out their case within a reasonable time.
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- Early settlement – Both parties should attempt to settle the claim without going to court. Either through mediation, dispute resolution or through a specialist solicitor.
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- Court – when unable to settle the dispute, the matter will progress to court.
Before a TOLATA claim can be issued with the court, a ‘Letter Before Action’ will need to be sent laying out the basis of the claim.
The ‘defendant’ of the claim (i.e. recipient) should acknowledge the letter of claim within 21 days of receiving it. This should provide a timescale for the defendant’s response or formal reply.
The involved parties must negotiate to see if the property/land disputes can be settled before any court proceedings are initiated. If couples do not attempt to negotiate, they could be penalised on costs.
You can be referred to Alternative Dispute Resolution (ADR) to assist with negotiations where appropriate.
You should always attempt to settle a matter, where possible, out of court. A TOLATA claim can be settled out of court through a formal mediation process or through solicitor negotiation.
The Court will usually have expected you to have tried ADR before filing a claim under TOLATA. ADR refers to ‘alternative dispute resolution’ usually in the form of mediation or arbitration.
Through mediation, an impartial specialist called a mediator will help you both to come to an agreement. Arbitration must be agreed on by both parties to proceed. An independent arbitrator will then hear each side of the case so the arbitrator can attempt to settle the dispute.
Opting for ADR before proceeding with issuing a TOLATA claim may allow you to avoid costly court fees. It may be a quicker and easier process than issuing a TOLATA claim. However, this is not always possible.
If all of the points of dispute are not settled through ADR it is possible to still proceed to court with the remaining issues. Resolving as many issues as possible through ADR will reduce the amount to settle in court.
An out of court settlement will be accepted under the act if the settlement is seen as;
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- Fair.
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- Agreed to by both parties.
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- Made in the best interests of any children in the relationship.
When making a decision on an application or claim through TOLATA, the court will consider a number of factors. These can include:
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- The intentions of both parties
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- The welfare and care needs of any child under the age of 18 (especially if they currently live at the property in dispute)
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- The reasons for the purchase of the property
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- The interests of any secured creditor or mortgage lender.
A court will need to understand the history of the property in detail to be able to determine each party’s interest and claim on the property. Information requested could include:
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- Office copy entries from the Land Registry for the title property.
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- A copy of the conveyancing file from the solicitors at the point of purchase.
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- A valuation of the property or a drive by valuation for it’s present value.
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- Who purchased the property, or what name was used when purchasing the property?
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- Was the property purchased as joint tenants or tenants in common?
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- Was there any Declaration of Trust or Declaration of the Beneficial Shares in the Transfer Deed (TR1)
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- Who has contributed to the mortgage payments since the property was purchased?
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- Where did the deposit for the property come from?
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- Who paid the household bills and any upkeep costs or expenses relating to the property?
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- Has either party not directly contributed to the purchase, or acted to their detriment in any way?
This list is in no way exhaustive. A discussion with a solicitor will h
How long a TOLATA case takes, from ‘Letter before Claim’ to Court decision, will depend on the details of your specific case. The length of time will vary depending on how complex the case and claims are and how willing both parties are in the negotiations.
Our TOLATA claims solicitors are experts in the negotiation and court proceedings of TOLATA cases. They can advise you at any stage of your proceedings – whether making a claim, or defending against one.
The first step in a TOLATA application is usually ADR. Both parties must be aware of ADR and what it involves before progressing. However, it is up to your discretion whether you choose to progress with ADR. In some situations, such as when domestic abuse is involved, ADR may not be suitable.
If you are unable to come to an agreement through ADR you may wish to make a formal TOLATA application.
Before choosing to go to court, our solicitors can help both parties to negotiate a settlement.
If you decide to take the case to court, you can make a TOLATA claim.
First a letter before claim will be set out. This includes a claim form, statement in support and documentary evidence in support of the claim. All potential claims must be included in the claim form.
After the other party receives this they are able to respond and lay out their case. If settlement does not work here either then the Court can decide the outcome.
This depends on how cooperative both parties are in the process, and whether the claims can be settled out of court. If an early settlement can be reached, then the costs will be relatively low. However, if the claim can not be settled out of court then a TOLATA claim can become expensive.
The costs will also differ depending on the type of claim you are making under Trusts of Land and Appointment of Trustees Act. Get in touch with one of our solicitors who will be able to consider your situation and advise you on the likely costs associated with it.
You may also be able entitled to recover the costs of the claim back from the losing party after a ToLATA case. However, this is not guaranteed.
In some cases, the Trusts of Land and Appointment of Trustees Act cannot help someone making a claim. The courts do not have the power to:
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- Vary the co-ownership of a property.
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- Adjust the proportion a person owns of a property.
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- Order that a person should sell or transfer their share of property to the other.
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- Order a trustee/owner to do something they are not permitted to do under the terms of trust.
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- Order that one person should buy another out of their share.
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