More people than ever are choosing to buy a home with their partner without getting married or entering into a civil partnership. While this works well for many couples, problems can arise if the relationship breaks down, particularly when there is disagreement about who owns what share of the property.
A common misconception is that living together creates a “common law marriage”, giving couples the same legal rights as those who are married. Unfortunately, this is currently not the case. If a dispute arises over a property, unmarried couples do not have the same legal protections, making matters more complex when a relationship comes to an end.
In this article, we explain what TOLATA is, when a claim may be appropriate, the possible outcomes, and how legal advice can help protect your interests.
What is TOLATA?
TOLATA stands for the Trusts of Land and Appointment of Trustees Act 1996. It is legislation that provides a legal framework for resolving disputes relating to the ownership of property and land held in trust.
TOLATA claims commonly arise when unmarried couples disagree about their financial interest in a property following the breakdown of their relationship. While some disputes can be resolved through discussion, negotiation or mediation, this is not always possible. In these circumstances, a TOLATA claim may help determine each party’s rights and interests in the property.
When might a TOLATA claim be necessary?
Every situation is different, but a TOLATA claim may be considered where there is uncertainty or disagreement about ownership of a property, and an agreement of Declaration of Trust has not been drawn up when the property was purchased.
Common examples include:
- You contributed all or part of the deposit, but ownership of the property is disputed.
- The property is in your partner’s sole name, but you have made financial contributions towards the mortgage, utilities or improvements.
- The property is owned jointly, but one person has contributed significantly more towards the purchase price or mortgage repayments.
- You and your former partner disagree about how the property should be sold or how the proceeds should be divided.
- The property is held in joint names, and there are children or other dependants living at the property.
The court will consider the individual circumstances of each case, including any agreements between the parties and evidence of financial contributions, before reaching a decision.
What should you do before making a claim?
If you have been unable to reach an agreement with your former partner, there are several important steps to consider before starting court proceedings.
Gather evidence – The strength of a TOLATA claim often depends on the evidence available. Useful documents may include:
- Property ownership documents
- Mortgage statements
- Bank statements
- Records of payments towards the deposit, mortgage or property improvements
- Any written agreements or correspondence relating to ownership of the property
Seek legal advice – TOLATA claims can be complex, particularly where there is no formal agreement setting out the parties’ respective interests. Obtaining legal advice at an early stage can help you understand the strength of your position, explore your options and avoid costly mistakes.
Consider negotiation or mediation – Court proceedings should not always be the first option. In many cases, disputes can be resolved through negotiation or mediation, which can be quicker, less stressful and more cost-effective than litigation.
Where attempts to resolve the dispute have been unsuccessful, a lawyer can help you take the next steps and, where appropriate, commence a formal claim.
How to make a TOLATA claim
If you have exhausted other avenues to reach a mutual agreement with your former partner, a formal claim may be issued.
This typically involves:
- Sending a Letter Before Action setting out your position and proposed resolution.
- Issuing court proceedings if the dispute remains unresolved.
- Exchanging evidence and supporting documentation.
- Attending court hearings where required.
- Receiving a decision from the court regarding ownership, occupation or the future of the property. Both parties must comply with the court’s decision and take the appropriate action required of them.
Throughout the process, legal advice can help ensure your interests are properly represented and that all procedural requirements are met. Appointing a legal expert will give you the best chance of bringing a successful claim.
What outcomes can the court order?
The outcome of a TOLATA claim will depend on the specific circumstances of the case. However, the court has a range of powers available and may order one or more of the following outcomes:
A legal expert will offer advice and guidance relating to these resolutions.
How the experts at Backhouse can help
Property disputes following the breakdown of a relationship can be stressful, emotionally challenging and financially significant. Understanding your legal position is often the first step towards finding a practical solution.
Our experienced Dispute Resolution team can advise you on your rights, help you explore alternatives to court proceedings and, where necessary, represent you throughout a TOLATA claim. We will work with you to achieve the best possible outcome while providing clear, straightforward advice every step of the way.
To discuss your circumstances with one of our experts, contact the team today and book your free 30-minute consultation.
Tel: 01245 893400 | 01702 410880
Email: info@backhouse-solicitors.co.uk
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