TOLATA Claims / Co-habitee Property Disputes

It is an unfortunate fact of life that property/financial disputes often arise between co-habitees/partners, following a breakdown in their relationship.  This may lead to one partner leaving the property or being excluded from the property and can create uncertainty as to her or his legal position in respect of whether she/he has any financial interest in the property. 

These claims are often referred to as ‘TOLATA Disputes’.  TOLATA is short for the Trust of Land and Trustees Act 1996 which covers the law in relation to such disputes.  There is no such thing as common law rights for co-habitees nor are these type of claims dealt with through the matrimonial Courts.

This is a complex area of law and specialist advice should be sought from a Solicitor with specialist TOLATA expertise and experience with the Civil Courts. 

How can I Avoid such Disputes?

Co-habitation Agreements are becoming more popular as fewer couples get married.  A properly drawn up Co-Habitation Agreement will set out each of the parties’ respective rights at the outset in a contract form and, therefore, should prevent disputes of this nature arising at a later date.  If you require advice and assistance in preparing such an Agreement, please contract Lee or Chiara in our Family Department.

Property Purchase

Ensure at the time, when the property is purchased, proper advice is sought as to how the property will be held – will the property be held in joint names?  If so, will the property be held as joint tenants or tenants in common and in what proportions of each shares? 

My Relationship with my Co-Habitee has Broken Down – What Options do I Have?

• Try and resolve matters directly and by agreement;
• Instruct Solicitors to try to resolve the matter through negotiation and/or mediation;
• Make an application to the Court under the Trust of Land and Trustees Act 1996.

When an Application, under TOLATA, is Usually Made

Jointly Owned Property

1. To determine whether jointly owned property should be sold, it is quite common for one party to remain in the property after the relationship breakdown and refuse to sell.
2. To calculate the respective beneficial shares which each co-owner is entitled to from the sale proceeds when the property is sold.
   1. Does there need to be an Equitable Account? 
   2. If one party remains in the house – should he or she pay an Occupational Rent?
   3. Has one party paid the mortgage since separation – should their share of the equity be adjusted to reflect those payments? 

Property Held in one Co-Habitees Name

To determine whether the other person has a Beneficial Interest in the property, even though that party’s name is not on the Legal Title. 

Evidence/Factors the Court will Consider in Deciding the above Issues

1. Was there a Written Declaration entered into between the parties at the time of purchase?Documents will need to be obtained from the Land Registry and/or from the Solicitors’ conveyancing file at the time of the purchase or relevant correspondence between Solicitor and Client.  Also, emails and text messages between the parties may assist in establishing this intention.
2. The intentions of the parties when the parties was first purchased, for example, was it to be a home for both of them?
3. The purpose for which the property was purchased.
4. The welfare of any children who may still occupy the property.  The Court may postpone an Order for Sale if there are children still in the house.
5. Where a promise is made by one party to the other, upon which they relied and acted to their detriment. 
6. Financial contributions of each of the parties.  Who paid the mortgage, the deposit, improvements etc.
7. The circumstances and wishes of beneficiaries.
8. Any other relevant factors.

Costs

The general rule in Civil Litigation is that the loosing party pays the majority of the costs of the winning party but the Court has a wide discretion as to costs. 

Following an initial evaluation of the case, guidance can be provided by our Specialist Team as to the strengths and weaknesses of your case and whether negotiation and/or mediation should be considered in an effort to avoid the costs of a case proceeding to trial. 

How long does a TOLATA case take?

TOLATA claims can vary from case to case and the length of time depends on the co-operation between the disputing parties.  In some cases medication or Solicitors’ negotiation can reduce the time a claim can take. 

If resolution cannot be reached and a claim proceeds to Court, it can take 12 months or more from the date of issue to the date of trial. 

Our Solicitors will guide you every step of the way making sure that you are in the strongest position possible for success at Court.

If you wish to know more about this, then please contact Gary Hall via email gary.hall@clough-willis.co.uk or call 0800 083 0815.