ToLATA Claims for Unmarried Couple's Property Disputes - A guide on the Trusts of Land and Appointment of Trustees Act, from SAM Conveyancing
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ToLATA Claims

Caragh Bailey
7 min read
If you have contributed towards a property and do not feel that you are getting your fair share, you may be able to make a ToLATA claim for a lump sum, or the right to occupy the property. Our expert solicitors can help.

What are ToLATA Claims?

The Civil or High Courts can determine ownership of a property where multiple parties claim an interest. They do this using a piece of law called the Trusts of Land and Appointment of Trustees Act (TOLATA). These claims follow Civil Procedure Rules (CPR).

ToLATA claims can determine:
The court does not have the power to:
  • whether jointly owned property should be sold
  • the respective shares that each co-owner is entitled to
  • whether a party has a beneficial interest in the property, usually where that party’s name is not on the legal title and the legal owner is disputing the claim
  • whether property subject to a trust of land should be sold on the application of a creditor or a beneficiary such as a parent/grandparent seeking to recover their financial interest in the property
  • vary that co-ownership
  • adjust the proportions that each person owns
  • order that one party sells or transfers their share of the property to the other
  • order one trustee to do something that they are not permitted to do under the terms of the trust
  • order that one party compulsory purchases the interest of the other party

ToLATA claim for unmarried couples

Most Trusts of Land and Appointment of Trustees Act claims are brought by cohabiting couples who are not married or civil partners. Unmarried cohabitees do not have the same rights, despite the common misconception that 'common law marriage' grants them some level of protection - this is a myth.

To avoid this, SAM Conveyancing recommend having a cohabitation agreement, or deed of trust, drawn up as early as possible. Ideally, before you fall out with each other.

Without some form of protection in place, conflicts usually arise where one party believed that their contributions toward the household, for example mortgage payments, would entitle them to a share, or larger share, in the property. Another party (usually but not necessarily the other half of the couple) disputes this claim.

The Trusts of Land and Appointment of Trustees Act can be used to form a trust on the property and determine what the split of ownership is between the parties. It can also be used to make an order (see limitations above) on what happens to the property.

ToLATA can also be used for:

  • Removing oneself from the title deeds or mortgage (giving up your beneficial share)
  • to recover a sum - ie. you made a contribution towards the deposit on a property for your nephew and want to recuparate that amount

Can you settle out of court?

The Trusts of Land and Appointment of Trustees Act allows for an out of court settlement to be made, so long as:
  • It is fair
  • It is in the best interest of any children in the relationship
  • Both parties agree

It is best to try and reach a settlement rather than taking the claim all the way through court, as this will save time, legal costs and stress. You can do this through mediation, or through solicitor negotiation. Get in touch to see how we can help.

Making a ToLATA Claim

If you have cohabited, or otherwise have a financial stake in a property, you have the right to make an application to the court under the Trusts of Land and Appointment of Trustees Act:

‘Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court for an order under this section.’ (S14 ToLATA)

    Letter before claim - Setting out claimants case, with evidence
    Response - Setting out defendants case (there is a short time limit to make this response)
    Early Settlement - Attempt to settle through mediation or negotiation
    Court - If settlement can't be reached, application is made to Court

Contact us to instruct our expert family solicitors to help at any stage.

To make a claim you must declare exactly what actions you took which entitle you to a share, whether you contributed to the deposit, the mortgage, maintenance or improvements. You should also aim to prove that there was a direct or implied agreement between you, that you would share the property.

In situations where you can show that you have been encouraged by the other party to act to your detriment, in reliance of your claim on the property, this will help your case. This is most common in situations where one party has left work to raise the couple's children, while the other has continued to work and become solely liable for the mortgage.

If the court find that you do have a beneficial interest in the property, they can impose a constructive trust to compensate for your share.

Defending a ToLATA Claim

Prevention is the best cure:

    Discuss your intentions for the property honestly, openly and at the beginning of the relationship or cohabitation. Set these out in writing.
    Keep a record of contributions made toward the property and whether they are intended as a gift or an investment
    Get your beneficial shares legally formalised with a deed or declaration to protect the interests of both parties and avoid conflict.

That being said, you are probably here because it is too late for that and you are already being threatened with a claim. Gather whatever evidence you have that may disprove the claim, including emails, texts etc.

If at all possible, instruct a family law solicitor to determine the risk that the claim will succeed in court and to negotiate accordingly. Get in touch to find out how we can assist with your defence.

ToLATA Court Fees

Court fees, including for ToLATA claims, are normally recovered from the losing side - this means that the court can order the loser to pay for the winner's costs. The amount of ToLATA court fees will vary depending on what claim you are making under the Trusts of Land and Appointment of Trustees Act.

Check out this guidance on civil and family courts fees for a breakdown based on the value of the claim. Or, get in touch to instruct a solicitor to review your situation and assess your total costs for you.

Frequently Asked Questions

S 1 Trusts of Land and Appointment of Trustees Act 1996 governs the meaning of 'Trust of Land' throughout the Act:

    In this Act—
  • “trust of land” means (subject to subsection (3)) any trust of property which consists of or includes land, and
  • “trustees of land” means trustees of a trust of land.
    The reference in subsection (1)(a) to a trust—
  • is to any description of trust (whether express, implied, resulting or constructive), including a trust for sale and a bare trust, and
  • includes a trust created, or arising, before the commencement of this Act.
    The reference to land in subsection (1)(a) does not include land which (despite section 2) is settled land or which is land to which the M1Universities and College Estates Act 1925 applies.
According to the government's website:

"The essence of a trust of land is that the formal title to the land (the ‘legal estate’) is separated from the underlying ownership (the ‘equitable interest’ or ‘beneficial interest’).'

Read more at GOV.UK
ToLATA claims are usually made by someone who is a co-owner, or a beneficial owner, or who believes they have established a beneficial share while living in the property. The latter is known in law as a Constructive Trust.

There are other parties who can also make an application:
  • personal representatives of a beneficiary
  • trustees in bankruptcy
  • judgement creditors with a charging order secured against the property
  • receivers

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