TOLATA stands for the Trusts of Land and Appointment of Trustees Act 1996. It is a piece of legislation that provides a legal framework for resolving disputes about the ownership, management and sale of property or land.
Where a dispute arises under the TOLATA Act 1996, the courts have the power to decide the shares each person holds and what should happen to the property if a couple separates. In other words, TOLATA gives the civil courts the ability to resolve property disputes involving land and property.
Why do TOLATA claims arise?
Unmarried couples do not have the same property rights as married couples. This means one partner can have no automatic claim to a property, even if they paid towards the deposit, the mortgage or any renovations. If their name is not on the title deeds, a TOLATA claim can help an unmarried partner clarify their beneficial share in the property they live in, recover financial contributions they made, establish a right to live there, and assert their rights where they are not named on the deeds.
For married couples and civil partners, property rights are dealt with under the Matrimonial Causes Act 1973, so TOLATA claims are made in the civil court rather than the family court.
Unmarried couples can, however, make separate applications through the family court, such as an occupation order or a claim under Schedule 1 of the Children Act. An occupation order decides who can live in or enter the home, while a Schedule 1 claim seeks housing or financial provision for children.
How to make a TOLATA claim
A TOLATA claim can be made at any time, as long as a dispute has arisen. If you are involved in one, you are encouraged to follow the Civil Procedure Rules (CPR) pre-action protocol before starting proceedings. This is a set of steps all parties should follow before going to court, allowing them to exchange information, clarify the issues and try to settle the dispute without the need for litigation.
Making a TOLATA claim involves three main stages: completing the pre-action protocol, preparing and issuing the claim, and the court’s case management, hearing and judgment.
Completing the pre-action protocol
Before you start a court claim, you must complete the CPR pre-action protocol checklist. This includes sending a ‘Letter Before Claim’ to the other party, setting out the basis of the dispute, the contributions each party made, and the outcome you want, for example a share of the equity or a right to live in the home.
The defendant has up to 14 days to respond if the matter is straightforward, or up to three months if it is complex. They must state whether the claim is accepted and, if not, give their reasons, identify the disputed issues and say whether they are making a counterclaim.
The parties then exchange documents and evidence, such as bank and mortgage statements and any communications, for example emails or messages, that show what was agreed about ownership or the financial contributions made.
Preparing and issuing the TOLATA claim
To bring a TOLATA claim, your solicitor will complete and submit a claim form (Form N1) to the court, setting out your legal interest in the land or property, the shares you claim to hold, and the basis for that interest, such as the contributions you made towards it.
Once the form is issued by the court, it must be served on the defendant. Service must take place within four months, and the defendant then has a period to respond. This is normally 14 days but can be longer for more complex cases. If they file a defence, the claim progresses to the case management stage.
Case management, hearing and judgment
Once the claim is issued, the court manages it. It will order disclosure of documents, witness statements, expert evidence for property valuations, a timetable for submissions and hearings, and any further attempts at settlement such as mediation.
If the dispute cannot be resolved, it goes to a final hearing where a judge decides who owns the property, what shares each party holds, whether it should be sold, how the needs of any children will be met, and who has the right to live in the home. Once the court makes its decision, it is binding and will be enforced.
How long does a TOLATA claim take?
A TOLATA claim usually takes between six and 18 months to complete. The exact timescale depends on the complexity of the ownership, the amount of evidence involved, how willing both parties are to cooperate, and whether an agreement is reached before the final hearing.
What orders can the court make and what factors are considered?
Under Section 15 of the TOLATA Act 1996, the court must consider:
- the intentions of both parties
- why the property was purchased
- the welfare of any children who live in the property
- the interests of any lenders, such as mortgage providers
- the conduct and contribution of each party, such as payments made towards deposits or mortgages
- any agreements between the couple about ownership
The court then weighs up all the evidence and reaches a decision based on the legal principles of trusts and beneficial ownership.
How Davisons Law can help
At Davisons Law we have an expert family law team with experience in TOLATA disputes, who can guide you through what can be a stressful process from start to finish. If you need help with a TOLATA claim, get in touch with Davisons Law today on 0808 3036 987 and a member of our team will be in contact with you.
