Unmarried couples and their property rights – TOLATA Claims
If you and your ex-partner are joint owners, or if one of you owns a property that you both shared, a TOLATA claim can help determine your respective rights and interests in the property. This can include establishing your share in the property, enforcing a sale, or seeking compensation. Claire Sargant, Senior Solicitor in Sydney Mitchell’s Family team explains.
What is TOLATA?
TOLATA is an abbreviation of the Trusts of Land and Appointment of Trustees Act 1996. This legislation provides the court with the power to determine the ownership of property and land.
How can TOLATA assist unmarried couples upon separation?
When unmarried couples separate and there is a dispute regarding property, the matter is dealt with under civil law rather than the matrimonial law which applies to married couples.
It is common for disputes to arise upon separation in relation to the extent of the parties’ ownership of a property. This may be for example because the property is registered in the sole name of one party however the other party has made financial contributions to the property and therefore seeks to claim a share; or the property may be owned jointly by the parties however there is a dispute as to the shares held by them.
If a couple cannot reach an agreement in respect of their respective entitlements, then either party can make an application in order for the court to determine each party’s interest in the property.
An application under TOLATA may also be required if the parties cannot reach an agreement as to what should happen to the property following their separation. For example, one party may want to sell the property and divide the proceeds of sale whereas another party may want to retain the property and delay the other party receiving their share of the equity. Under TOLATA, the court can determine whether there should be an order for sale and if so, when the property should be sold.
What steps need to be taken before a TOLATA claim can be made?
A party seeking to make a TOLATA application should send a letter of claim (also referred to as a letter before action) to set out their case, any evidence they seek to rely upon and their proposed resolution.
Before an application to court is made, the parties should try to resolve matters by other means for example, negotiation or via alternate dispute resolution (ADR) such as mediation. This can often be less adversarial and both time and cost effective.
What evidence is required before issuing a TOLATA claim?
It is important to gather supporting evidence early on in a dispute. Evidence which is likely to be relevant includes:-
- A copy of the conveyancing file.
- Office copies from the Land Registry.
- A copy of the TR1 form filed with the Land Registry.
- Any communication such as emails or text messages showing an agreement made about the property.
- Evidence of financial contributions towards the property.
- Details of any secured creditors
What factors will the court consider when determining a claim?
When assessing a TOLATA claim the court will consider:-
- The intentions of the parties and the purpose for which the property is held.
- The financial contributions made by the parties.
- The welfare of any children occupying the property.
- The interests of any secured creditor.
Is there a time limit on starting a TOLATA claim?
Whilst there is no specific time limit for commencing a TOLATA claim the court will be less sympathetic if there has been undue delay in bringing a claim. Delay could make matters more complicated and pose practical issues such as relevant evidence no longer being available.
How long does it take to resolve a TOLATA claim?
The court proceedings can often take 12 months to conclude. The timescales depend upon the complexity of the case and the court’s availability.
How can Sydney Mitchell help?
At Sydney Mitchell our team is experienced in TOLATA disputes. We pride ourselves on achieving successful outcomes for our clients by negotiating settlements out of court, which not only saves time but also minimises costs. However, if court intervention becomes necessary, our experienced litigators are ready to step in to help. Contact us today to discuss how we can help you.
