The Trust of Land and Appointment of Trustees Act 1996 (“TOLATA”) gives Courts certain powers to resolve disputes about the ownership of the property.
When considering TOLATA claims the court has discretion to order any of the following:
- To force the sale of land or property.
- To reoccupy a former family home when an ex-partner refuses to leave.
- To determine the share of the property that you each own.
A claim under TOLATA can be wide reaching in respect of who can make the claim but the majority of cases tend to be relating to separated cohabiting couples. Anyone in the relationship who has an interest in a property or land may apply to the Court for an Order concerning their interest.
What will the court consider in a TOLATA Claim ?
When determining an application the Court will consider, amongst other things, the intentions of the parties; the welfare of any child under the age of 18 who lives in the property or might reasonably be expected to live there as his or her home; the reasons for the purchase; and the interests of any secured creditor such as a mortgage lender.
It will be necessary to understand what has gone on to determine an interest and a lot of information will need to be obtained to do this, for example:
- In whose name was the property purchased ?
- Was the property purchased as joint tenants or tenants in common ?
- Was there any written Declaration of Trust or Declaration of the Beneficial Shares in the TR1?
- Who has contributed to the mortgage payments since the property was acquired ?
- Who paid the deposit for the property ?
- Who paid the household bills and other expenses relating to the property ?
- Has either party acted to their detriment in any way not directly contributing to the purchase?
For the avoidance of any doubt this list is not exhaustive. It will be necessary to obtain office Copy Entries from the Land Registry to look at the title property.
Documents relating to the points raised above will also need to be produced along with a copy of the conveyancing file from the solicitors at the time that the property was purchased. A valuation of the property/ drive by valuation will also need to be obtained to determine its present value.
Before a claim is issued with the court, a Letter Before Action will need to be sent setting out the basis of the claim. The parties have a duty to negotiate to see if matters can be resolved before any Court proceedings are commenced, otherwise the parties could be penalised on costs. The party who would be a defendant should acknowledge the letter of claim within 21 days of receipt and give a timescale for his/her response. The parties can also be referred to Alternative Dispute Resolution (ADR) to assist with negotiations where appropriate.
TOLATA proceedings can be expensive so it is important that legal advice is obtained in connection with this complex area of law.
How our Dispute Resolution team can help
If you are seeking a Solicitor to advise you in relation to a TOLATA claim or would like to find out about our services more generally, please contact our Dispute Resolution team at TV Edwards Solicitors.
T: 0203 440 8139
35-37 Mile End Road, London, E1 4TP