TOLATA Solicitors | Joint Property & Ownership Disputes

When might I need a TOLATA solicitor?

TOLATA claims commonly arise when people have purchased or acquired property together and subsequently disagree about their respective rights.

This can include disputes between unmarried couples when a relationship breaks down. Unlike divorcing spouses or civil partners, unmarried couples do not have the same financial remedies available through family law simply because they have lived together for a particular period.

Instead, a dispute about who owns a property or how it should be dealt with may need to be determined using property and trust law principles.

TOLATA can also apply well beyond former couples. Claims can arise between friends who purchased a property together, siblings who jointly own property, family members and other co-owners.

Our Dispute Resolution team can establish whether TOLATA applies and guide you through the process of attempting to resolve the disagreement.

Can TOLATA be used to force the sale of a property?

Yes, one of the most common reasons for bringing a TOLATA claim is where one owner wants a property sold but another refuses.

A person with the necessary interest can ask the court to make an order relating to the property under section 14. This can include an order for sale.

The court does not automatically order a sale simply because one owner requests one. When considering a section 14 application, section 15 requires the court to consider matters including the intentions of the person or people who created the trust, the purpose for which the property is held, the welfare of any minor who occupies or might reasonably be expected to occupy the property as their home and the interests of secured creditors. The circumstances and wishes of relevant beneficiaries can also be considered.

This makes the evidence and circumstances surrounding the ownership important.

If you want to force the sale of jointly owned property, or another owner is seeking an order for sale that you oppose, our TOLATA solicitors can advise on your position.

What if we disagree about our shares in the property?

A TOLATA dispute does not necessarily involve selling the property. There may instead be disagreement about each person's beneficial interest.

For example, two people may be registered as the legal owners but disagree about whether they own the property equally. Alternatively, the property might be registered solely in one person's name while somebody else argues that they have acquired a beneficial interest.

The starting point will depend on the ownership arrangements and circumstances. Relevant evidence could include the transfer documentation, any declaration of trust, a written agreement between the parties and evidence relating to how the property was acquired.

The circumstances in which a beneficial interest can arise without an express declaration are legally complex. Simply making mortgage payments or other financial contributions does not provide a universal formula under which someone automatically receives a particular percentage of the property.

We can review the history of the property, the documentation and the parties' respective positions before advising on the strength of a claim.

What is a declaration of trust?

A declaration of trust can record how the beneficial ownership of a property is divided.

For example, two people buying together might agree that one owns 60% and the other 40%, perhaps because they have contributed different amounts towards the deposit. The document can also contain provisions dealing with how the property is to be sold or how the proceeds are divided.

A clear declaration can be extremely important if a dispute subsequently develops. However, not every jointly owned property has a separate declaration of trust. Even where one exists, the precise wording and any later events may need to be considered when a disagreement arises.

A TOLATA solicitor can review the relevant documents and advise on their effect.

Can TOLATA determine who can live in the property?

TOLATA also contains provisions concerning occupation. Section 12 provides certain beneficiaries with a right to occupy the property where the statutory requirements are satisfied. Section 13 gives trustees powers concerning the exercise of occupation rights, including in some circumstances restricting or excluding a beneficiary's entitlement and imposing conditions. The Act also provides safeguards where somebody is already in occupation.

Disputes about occupation can therefore arise alongside disagreements about ownership or sale.

This is another reason why a TOLATA dispute should not be reduced simply to the question of whose name appears on the Land Registry title.

Do TOLATA claims go through the Family Court?

TOLATA is sometimes associated with family law because many claims arise after an unmarried couple separates. However, a TOLATA claim is a civil property claim rather than the same type of financial remedy proceedings available on divorce. This distinction is very important.

The court is determining rights relating to the property under trust and property law. It is not simply deciding what division it considers fair because a relationship has ended.

This can come as a surprise to people who have lived together for many years and assumed that they would have the same property rights as a married couple. Getting advice early can help you understand which legal framework applies to your circumstances.

Do I need to go to court?

Not every property dispute needs a judge to decide it. Before commencing proceedings, it is often sensible to establish each person's legal position and explore whether an agreement can be reached.

Solicitor negotiations can sometimes resolve the dispute. For example, one person might agree to buy out the other's interest, the parties might agree to put the property on the market, or they might reach an agreement about their respective shares.

Alternative dispute resolution, including mediation, can also provide a way of exploring settlement without asking the court to determine the dispute.

Where an agreement is reached, it should be documented properly so that the parties understand what they have agreed and what needs to happen next. If agreement is not possible, court proceedings may be required.

What evidence is important in a TOLATA claim?

The evidence required will depend on what is disputed. Relevant material could include property purchase documents, Land Registry records, a declaration of trust, mortgage documentation, bank statements, correspondence between the parties and evidence relating to financial contributions.

Messages, emails or another written agreement may also be relevant where they help establish what the parties intended or agreed.

However, the importance of any particular document will depend on the legal basis of the claim. A solicitor should therefore consider the evidence in the context of the specific property ownership arrangements rather than looking at individual payments in isolation.

Can AFG Law defend a TOLATA claim?

Yes. We advise people bringing and defending claims. If you have received correspondence threatening proceedings or have been served with a claim, you should obtain advice promptly.

You may dispute that the other person has the beneficial interest they claim. You might accept that they have an interest but disagree about its extent, or you may oppose an application for an immediate sale.

Our Dispute Resolution team can review the claim and evidence, advise you on your options and respond on your behalf.

How can our TOLATA solicitors help?

Property disputes can become particularly difficult because they combine substantial financial interests with what can be a long personal history between the parties.

AFG Law is a law firm experienced in resolving civil disputes, and our Dispute Resolution team can advise on TOLATA matters including:

• applications for the sale of jointly owned property;
• disputes over beneficial ownership;
• claims involving property held in one person's name;
• disagreements about the respective shares in a property;
• declarations of trust;
• rights to occupy property; and
• bringing or defending TOLATA proceedings.

We will first establish the legal ownership, the basis of any claimed beneficial interests and what outcome you are seeking. We can then advise on negotiation, alternative dispute resolution or court proceedings as appropriate.

Whether a relationship has broken down, you have purchased property with a friend or relative, or another disagreement has developed over jointly owned property, getting advice early can help clarify your position.

Contact AFG Law's Dispute Resolution team if you need advice about a TOLATA claim or another dispute concerning ownership of a property.