What is TOLATA?

When two unmarried parties can’t agree on property or land ownership, either of them can make an application to the court to decide under an area of law called TOLATA.

TOLATA gives the court the power to make decisions about property or land ownership and any related disputes. It does not only apply to romantic relationships; TOLATA can also be used to resolve property disputes between family members and other third parties, as long as they are not married (married couples are protected under the Matrimonial Causes Act 1973).

What does TOLATA stand for?

TOLATA stands for The Trusts of Land and Appointment of Trustees Act (1996). Also known as ‘TLATA’, this legislation applies to the trusts of land in England, Wales, Scotland and Northern Ireland.

What is a trust of land?

A trust of land is the legal entity that takes ownership of land or property. One party can be the legal owner of a property (the Trustee) but another party (the Beneficiary) can benefit from it.

For example, Ben buys a flat with a mortgage, but his long-term partner (Alice) moves in after two years. Alice contributes towards the mortgage and monthly bills, but the legal title is under Ben’s name. Ben and Alice split up and a dispute arises over the share in the flat. Ben is the trustee and Alice is the beneficiary.

How do you prove beneficial interest?

When deciding on beneficial interest using TOLATA, the court will look at evidence that can prove (or disprove) what the intentions were or are for that property or land.

For example, in Ben and Alice’s case, the court might look at how many mortgage contributions were made by both parties, any written evidence that mentions Alice moving in and what was intended in terms of financial contribution. The court will also look at who contributed towards renovations or home improvements during the time they cohabited.

Case study | Dispute over beneficial interest and property ownership between mother and daughter

What decisions can be made under TOLATA?

Under TOLATA, you can make three types of applications:

• Who is entitled to occupy a property or land;
• The nature or extent of the ownership; and
• Whether the property or land should be sold.

When deciding on property occupation, the court can declare the parties’ beneficial interests and shares, but it cannot adjust the proportions that each party owns or order for one party to transfer or sell their share to the other.

How does TOLATA differ from how property ownership disputes are solved between married couples?

TOLATA applies to unmarried parties; whether that’s long-term romantic partners or two family members. The focus in a TOLATA case is determining how the parties intended to own the property or land.

With married couples going through divorce, the Matrimonial Causes Act 1973 applies, and a court can divide the property or land based on what is ‘fair’, considering each party’s present and future needs; for example, whether they have children together and whether one party should remain in the family home.

What is the process for a TOLATA claim?

The majority of TOLATA claims will follow the below process:

1. Pre-action
   • The Claimant writes to the Defendant, letting them know that they plan to make a court application.
   • The Defendant must respond to that letter.
   • Both parties must provide copies of key documents and relevant evidence.
   • Both parties should try Alternative Dispute Resolution (ADR) or mediation to come to an agreement without court involvement.
2. Making an application to the court
   • The Claimant applies to the court to make a TOLATA claim (and pays the court fee).
   • The court issues a claim form to the Defendant.
3. The response
   • The Defendant has 14 days to acknowledge the claim, stating whether they admit or dispute it (Acknowledgement of Service).
   • The Defendant can respond with a counterclaim.
4. Allocation to a ‘track’.
   • Once the above steps have been completed, the court allocates the TOLATA claim to a ‘track’. A track is the process or set of directions a claim takes. TOLATA cases usually follow the ‘multitrack’ process, which is for cases with a value of £25,000 or more.
5. The costs and case management conference (CCMC).
   • This is where the judge considers whether they have everything they need to progress the claim and the timetable for the case. As part of this, the judge might ask for further evidence.
6. The judge reads all evidence, hears from witnesses (if relevant) and makes a decision regarding the property or land ownership.

How long do TOLATA claims take?

Every TOLATA claim is different, so it is difficult to give a specific timeline. If the dispute can be solved via mediation or ADR, the claim can be resolved in a few months. If the TOLATA claim goes to court, it can be several months to over a year before it concludes.

How can I avoid a TOLATA claim?

If you are purchasing land or a property with another party, it is wise to record your intentions in writing. This can be in a cohabitation agreement or a Declaration of Trust.

• A Declaration of Trust sets out what proportion of the property each party owns and how the sale proceeds should be divided if sold.
• A cohabitation agreement is similar to a Declaration of Trust but can be more detailed. For example, it can refer to mortgage or bill contributions or who is responsible for household repairs.

Need advice on a property ownership dispute? Get in touch

If you are unsure of your rights regarding property or land ownership, or you have been given notice of a TOLATA claim, our specialist TOLATA solicitors can help.

For straightforward advice, call us on 0117 325 2929 or fill out our online enquiry form.