Cohabitees do not enjoy the same legal rights as couples who are married or in a civil partnership. The Matrimonial Homes legislation – which can operate to allow a spouse or civil partner to live in the matrimonial home when the relationship breaks down, even if it is owned in their partner’s sole name – does not apply to unmarried couples. So, if you split from your partner, you do not have any automatic rights over the property you had treated as being jointly owned during your relationship. To some extent, this gap in the law is filled by what are known as ‘TOLATA’ claims. TOLATA claims do not apply exclusively to cohabitee situations and can be used by anyone asserting a beneficial interest in a property.

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What Are TOLATA Claims?

TOLATA claims are brought under the Trusts of Land and Appointment of Trustees Act (TOLATA) which allows the Court to make various Orders regarding the beneficial ownership of a property. Importantly, the Court’s jurisdiction in the context of TOLATA claims is subjective rather than discretionary. The purpose of the Judge in TOLATA claims is to decide what the intention of the parties was, based on the evidence, not to impose an outcome based on what the Court considers would be fair.

TOLATA claims are usually based on one of four legal principles –

  • express trusts;
  • constructive trusts;
  • resulting trusts; or
  • the legal doctrine of proprietary estoppel.

You will need to satisfy the legal criteria applicable to the principle you rely on in order to succeed in your claim. Our expert TOLATA solicitors will advise on the law relevant to your case and the merits of your position.

Examples Of TOLATA Claims

Say, for example, you are a cohabitee in a property registered solely in your partner’s name. If your relationship breaks down and a dispute arises over ownership arises, you may be able to bring a TOLATA claim asking the Court to order that you have a beneficial interest in the property under a constructive trust.

A constructive trust can be imposed when the parties’ common intention was for a property to be held jointly, and the non-owning party acted to their detriment in reliance on that understanding. So, if you can prove that you made considerable financial contributions to the property – by paying the mortgage or towards significant home improvements, for example – the Court may infer that the parties must have intended for the property to be jointly owned. It would, after all, be unusual for a person to make extensive financial contributions to a property over which they had no entitlement. In that case, the Court may impose a constructive trust and decide that the property is held jointly notwithstanding it being registered in your partner’s sole name. The extent of each partner’s share will be based on the entire course of dealing between the parties.

More and more parents are now stepping in to help their children get on the property ladder by contributing towards the purchase price. Since this is often an informal arrangement, the parties do not document the basis upon which the funds are provided. No consideration is given to the extent of the parents’ rights over the property or whether they will be able to subsequently recover their investment should they so wish. In these cases, TOLATA can step in to help. Unless the money was given as a gift, the parents might be able to make a TOLATA claim to recover their investment and ask the Court to impose a resulting trust. Resulting trusts can arise where you contributed to the purchase price of a property registered in the recipient’s sole name. If the Court imposes a resulting trust, the parents’ share will usually be based on the amount of their contribution proportionate to the purchase price.

Orders The Court Can Make In Successful TOLATA Claims

Since TOLATA claims are governed solely by the parties’ intentions as opposed to what might be considered fair and just, the Court’s powers are generally quite narrow. The types of relief a Judge might award in a successful TOLATA claim include:

  • A declaration of each party’s share in the property.
  • Forcing a sale of the property.
  • Allowing a party to occupy the property.
  • Recovery of a party’s financial interest in the property.

TOLATA Claims Procedure

TOLATA claims follow the usual procedure for civil claims. Our solicitors begin by sending a detailed letter of claim to the other side, setting out the legal basis of your claim and the steps you require them to take to settle the matter before legal action is commenced.

The parties will then usually enter into settlement negotiations with a view to reaching an amicable outcome without the need for litigation. Parties to a claim are expected by the Court to explore alternative dispute resolution methods, such as Mediation. These methods often produce excellent results and are far cheaper, quicker and less stressful than Court proceedings. Our solicitors will advise on the method most appropriate to your case and guide you through the process. Settlement discussions and attempts can continue throughout the course of the matter.

If litigation becomes unavoidable, our solicitors will ensure you understand each step and are fully involved in the process. Since TOLATA claims are based on the parties’ intentions, strong evidence is crucial. Our solicitors have vast experience in helping clients bring and defend TOLATA claims. They will swiftly identify any evidence which might be helpful to your position, collate it and present it to the Judge in the most convincing manner.

TOLATA claims are legally and procedurally complex, often involving the application of numerous complicated legal principles. Our Norwich & Great Yarmouth solicitors provide straightforward advice, free from legal jargon, to help you to understand the law and how it applies to your case. They will work tirelessly to achieve the best possible outcome for you in the most cost-effective way.

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