Property and Land Ownership Claims (TOLATA)
Joint ownership of property or land is commonplace. The most common situation is when unmarried couples purchase a home together, but it is not unusual for family members or friends to own property or land together, either via mutual agreement or inheritance. Property or land can also be purchased jointly for investment purposes.
When parties cannot agree on ownership, or there is a dispute, the area of law used to determine ownership is called TOLATA (The Trusts of Land and Appointment of Trustees Act 1996).
TOLATA applies to disputes relating to co-owned land, except where the parties are married. This is because the Matrimonial Causes Act applies to married couples.
Our expert TOLATA solicitors advise clients across the UK from our offices in Bristol and the surrounding area in Bedminster, Bishopston, Bristol city centre, Kingswood and Thornbury.
Our property litigation solicitors focus on practical, common-sense advice and non-confrontational dispute resolution, keeping conflict to a minimum.
TOLATA and property ownership disputes
TOLATA claims are governed by the Civil Procedure Rules (CPR) and the Act gives the court the power to decide ownership of land (including property).
It is also not uncommon for one person to be the legal owner of land, but for others to contribute towards the land, e.g. make mortgage payments.
Often, it is (understandably) assumed that the legal owner of the property is the only owner of the property. However, the law states that the legal owner/s of the property holds the property on trust for the beneficial owner/s of the property. The legal owner/s may be different to the beneficial owner/s.
When a property or land ownership dispute cannot be settled, you can instruct a property litigation solicitor to apply to the court to decide under TOLATA.
If a TOLATA claim goes to court, a judge can decide:
- Which third-party/parties have an interest in the property or land;
- The share each party will own (if there is no Declaration of Trust or cohabitation agreement in place);
- An order to sell the property or land (recovering one party’s financial interest);
- A possession order if required; and/or
- Whether the other party must pay the costs of the claim.
The court cannot order one party to buy out the other party, however, this is often a solution, and time can be provided to allow for this to happen if agreed, before the property is placed on the market to be sold.
In cases where there is significant equity in the property or the ownership of more than one property is in dispute, civil mediation is often an effective way for the parties to narrow the points of dispute or settle the matter.
Can I settle a property ownership dispute out of court?
As with any dispute, it is always wise to attempt to settle it outside of court, where possible. Our property dispute solicitors will aim to settle matters using mediation or Alternative Dispute Resolution (usually a negotiation between each party’s solicitors). This helps you and the other party/parties come to an agreement in a conflict-free way, keeping things as stress-free as possible.
If you cannot reach an agreement outside of court, our expert team can help you apply to the court to decide.
How Barcan+Kirby can help
Our specialist team is experienced in advising individuals and businesses on property ownership and TOLATA claims. Our property dispute solicitors can help with:
- Advising you on a property or land ownership with a family member or friend
- Advising on property or land ownership disputes with a third party with a financial interest
- Making a TOLATA claim, including drafting pre-action protocol letters
- Defending a TOLATA claim
Our Family team also has lawyers specialising in TOLATA claims for unmarried couples. If you are separating from your partner and need advice on property or land ownership, click here.
Case study | Dispute over beneficial interest and property ownership between mother and daughter
TOLATA claims FAQs
If you and another party cannot agree on what happens to a property or land, you can apply to the court to decide under TOLATA. The process of deciding on ownership is:
- You and your solicitor send the other party a pre-action letter notifying them of the claim. Your lawyer will recommend alternative dispute resolution to resolve the matter out of court.
- If negotiations do not settle the dispute, you can apply to the court to decide. Your lawyer will help you with this.
- Once the other party receives notification of the claim, they must file an acknowledgement and/or a defence within a strict timeframe.
- A case management hearing will then take place, where the court (along with the parties) will set the timetable for trial. However, settlement negotiations can continue alongside the claim.
Our expert TOLATA solicitors will guide you through the process, from your initial appointment to settlement. We work with several external experts such as barristers and chartered surveyors (to value the land/property) to ensure the process runs as smoothly as possible.
When establishing who owns property or land, the court (or solicitors during negotiations) will look at whether parties had a Declaration of Trust (also known as a Deed of Trust).
A Declaration of Trust confirms what proportion of the property or land each party has and how it should be divided. Co-owners will either be tenants in common or joint tenants. If you are buying property or land with another party, whether that is a family member you have known your whole life or a third party with whom you have business interests, it is wise to instruct a lawyer to draw up a written agreement before the purchase is completed.
Having a written agreement such as a Declaration of Trust in place can help settle a dispute early on, without the need for it to go to court.
A trust in land can arise in various ways, including:
- An express declaration between the parties;
- An agreement between the parties reflected in their conduct; and
- Financial contributions.
If there is no written agreement relating to the purchase of the property or land, establishing ownership and interest can be more complex. The person claiming an interest will need to establish that the legal owner holds the property in trust for them.
Common trusts that exist but are not expressed include constructive trusts, resulting trusts and proprietary estoppel. These are legally complex topics but generally require evidence of a direct financial contribution, and/or intention between the parties for an interest to be created.
In this circumstance, if a relevant trust can be established, the court can impose the trust to benefit the party, so they are not wrongfully deprived.
The above is also applicable, if a party is attempting to claim an interest in land which is different to what is expressed in a Declaration of Trust.
Further information
If you are unsure of your rights when it comes to property or land ownership, or you have a dispute, our expert property litigation solicitors can help. To speak to a member of our team about your circumstances, call us on 0117 325 2929 or fill out our online enquiry form.