Claims under ToLATA 1996

When advising unmarried couples who decide to separate and seek a share of the family home that they have been living in, there are a number of factors to consider.

First, we need to understand who owns the property and how.

Joint ownership

If the property is to be held jointly it can be held as joint tenants or tenants in common.

If you own the property as joint tenants, it is presumed that you own the property in equal shares unless there is documentary evidence to show that it was agreed otherwise.  If one party dies, then under joint tenants the deceased’s share passes automatically to the surviving party.

If you own the property as tenants in common, then the size of your share is normally specified and can be equal or unequal. It is usually illustrated in either a TR1 or in a declaration of trust. Under tenants in common the deceased’s share passes under the terms of their Will or if there is no will the rules of intestacy.

Sole ownership

When the property is held in your sole name then you are the legal owner.

The assumption is that you are also the beneficial owner but that may not always be the case.  If another party claims they also have an interest in a property, then they will need to prove this. There are two scenarios where this often occurs.

1. When a direct financial contribution has been made to the purchase of a property in someone’s sole name and it cannot be seen either expressly or by implication that the contribution was intended to be a gift or a loan, therefore creating a resulting trust.
2. Where a direct contribution has been made to the purchase of a property in someone’s sole name and that person for example has promised that you will receive a share in the property by agreement in a formal document or confirmed it orally and in reliance of that promise/understanding you have acted to your detriment creating a constructive trust.

We see the above scenarios a lot in our daily practice as solicitors and that is why it is important that before you enter into any transaction such as buying a property with your partner, friend or family member you obtain legal advice otherwise you may have to make a court application in order to resolve the issue at a later date and the matter which can be costly.

Making a claim

If you do find yourself having to issue an application, before you do this a letter of claim must be sent to the other party, setting out your claim, with the facts of the case and what outcome you seek including how much money is sought.

The application is made under the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA 1996). First, you should always be aware of the cost implications with such applications, because unlike the general rule on costs, the losing party has to pay their own costs and those of the successful party.

The court has a broad range of discretionary powers under ToLATA 1996 and can make the following orders:

• Order for sale;
• Declarations as to a party’s interest in the property;
• Exercise of the trustees’ functions.

Schedule 1 claims

If you have children together but are unmarried, you may have claims pursuant to Schedule 1 of the Children Act 1989. These claims can include a property claim, lump sum claim, a claim for maintenance over and above the Child Maintenance Service payments where appropriate and an order to pay your legal fees.

When seeking housing for you and your children the claim is restricted to whilst the children are in their minority (under 18).  

Alternative dispute resolution

Before making a claim under ToLATA 1996 to order a sale or declare a person’s interest in a property you should consider alternative dispute resolution and pre-action conduct and protocols. The purpose of the protocol is to try and settle the issues without having to litigate so it saves the parties’ time and costs.

More information

Pinney Talfourd’s family law team are ranked Tier 1 in 2023 by Legal 500 and offer expert advice. If you have any queries, please contact a member of our family team to book a free initial consultation.