Most commonly, the Trusts of Land and Appointment of Trustees Act 1996, often referred to as ‘TOLATA’ is relied upon when a dispute arises between non-married cohabitees or family members who live in a property that is solely owned by one of the parties or owned through joint tenants/tenants in common. It is used by the Courts to decide ownership of or how much interest an individual might have in a property.
If you believe that you may have a beneficial interest in a property which you are not being treated fairly or remunerated for your contributions to, you may be able to initiate a TOLATA claim to secure the return of your financial interest in the property by way of a lump sum payment or by obtaining the right to occupy.
Who can make a claim under TOLATA?
Married and non-married cohabitees (although non-married cohabitees do not have the same rights of a married couple or those in a civil partnership where property is concerned) such as partners, family members and joint owners who purchased the property as an investment.
Issues can arise if the cohabited property was either solely owned or owned as tenants in common but this will be reviewed and advice provided. TOLATA can be used to determine who has proprietary rights or what the split in ownership is. It is also available where one party wishes the other to be removed from a property’s title or mortgage and that party is refusing.
How can I make a claim?
There are three main types of application that can be made:-
- An order for sale enabling an owner to realise their interest;
- To decide who is entitled to occupy the property; or
- To decide the extent of the ownership and the nature of that ownership.
Claims are brought through the court which will look at how you financially contributed to the acquisition and maintenance of the property, whether there was a common intention for you to share the property and whether this was discussed or implied between you. If there is anything in writing (such as a Declaration of Interest) between you before you began cohabiting to show the intentions this can assist, any records of any sums given as a gift or on a transactional basis.
Alternative Dispute Resolution
Often referred to as ‘ADR’, the courts actively encourage parties to participate in ADR such as mediation can, and should, be considered ahead of court action. Qualified mediators can be appointed to help where the property is at the heart of a relationship breakdown with a view to finding a satisfactory solution with a view to avoiding court action.
Court action can cost upwards of £30,000 and take in excess of a year to reach conclusion. The court will strongly penalise a party who refuses to mediate without good cause, often reducing the costs recoverable from the other side where mediation has been refused. Offers can be made throughout the process to try and resolve the issue both before and during court proceedings.
For any advice related to Tolata or any issues regarding property disputes do not hesitate to contact me on caroline.knowles-ley@cognitivelaw.co.uk or call on 01243 943203.
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