The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) provides a legal framework for the courts to ascertain the ownership of property or land in situations involving multiple interested parties. The Act grants the courts various powers to implement decisions regarding declarations of interest through appropriate orders.
If you are a homeowner or renter, you will be aware that there has been a rise in the cost of renting, which is leading to more people looking to purchase a home rather than rent. Because there has been such a drive towards buying, the face of cohabitation has changed, and unusual pairings, such as friends or short-term couples, are choosing to purchase a house together.
Because of this, we have seen a rise in TOLATA cases. At Brown Turner Ross, we specialise in family law and dispute resolution, so we have an insight into TOLATA cases, especially in conjunction with claims made by family members.
This article will outline precisely what TOLATA claims are and what defending a TOLATA claim entails.
What is a TOLATA Claim?
A TOLATA claim is a legal action that resolves property ownership disputes between cohabitating people.
The objective of these claims is to ascertain the ownership of a trust of land that is either jointly or solely owned. Such claims are submitted to either a County Court or a High Court and must adhere to the stipulations outlined in the Civil Procedure Rules (CPR).
At Brown Turner Ross, we always recommend that all parties reach a mutually beneficial agreement before taking the case to court to prevent stress and save money. If you would like to avoid court proceedings, we strongly suggest mediation, especially if the dispute is between family members.
When Might a TOLATA Claim Arise?
Now that you know more about a TOLATA claim, let’s further examine why and when a TOLATA claim may arise.
A TOLATA claim will generally arise when there is a dispute over who owns a property and who has the right to live there. A claim may arise in the following scenarios:
Unmarried Couples
TOLATA claims for unmarried couples are not uncommon. When a couple faces separation, they may disagree about how to handle the property. They may also dispute who owns the property and whether or not a party has the right to sell it.
If an unmarried couple mutually decides to sell the property, there may be further dispute over how the proceeds are split.
Family Members
TOLATA claims between family members can be complicated. They can occur if there is a dispute over who owns a property or who should remain in the property.
Legal ownership can be unclear for all parties if a property has been left to multiple people, such as children inheriting their parent’s property. This is a common problem encountered by families, which is why we will always advocate for the importance of drafting a declaration of trust.
It is not unusual for family members to disagree or argue, especially when it comes to the sale of an inherited property, which is why these disputes occur so frequently.
Friends
Given the current economic climate, it is no surprise that more and more friends are making the decision to climb the property ladder together. This works perfectly for most, but problems can arise if the friends disagree over property ownership.
There are a number of reasons why a friend may file a TOLATA claim, including to recover financial interests through the forced sale of a property or if an argument occurs.
Through a TOLATA claim, all involved parties can better determine who is entitled to occupy the property.
Parents and Children
It is not uncommon for parents or grandparents to make financial investments in their children’s properties to help them climb the property ladder. A common reason for TOLATA claims between parents and children is that the parents would like to recover their financial interest in the property.
It is also important to note that when a TOLATA claim is made, the courts will consider how the agreement may impact the welfare of any children living at the property that is subject to the claim. TOLATA family law can be complicated, especially depending on the relationship between the involved parties.
Business Owners
Joint ownership of property, such as commercial premises, is not irregular in a business partnership. However, it is important to outline the terms of your partnership and property ownership before signing any contracts, as a TOLATA claim could arise if the partnership breaks down.
This can be even more complicated if you are related to or married to your business partner, as family disputes or divorces could impact your business.
In such situations, beneficial interests will be assessed through an established resulting trust, which relies on contributions made, or through a constructive trust that is grounded in mutual intentions.
Divorce
The divorce process can be long and complicated, especially when property is involved. The family home is often the largest asset owned by a couple and can become an immediate point of contention during separation.
When a couple divorces, one of the involved parties may be dissatisfied with their share of the property, or the couple may not be able to agree on what to do with the property after the separation.
What Are The Types of TOLATA Claims?
Now that you have a deeper understanding of what may inspire someone to make a TOLATA claim, it is important to understand the types of TOLATA claims that people may make.
Ownership
Ownership alludes to determining who the legal and beneficial owners of the property are. If there are multiple property owners, they will choose the proportion of ownership that each involved party has.
Occupation
Through occupation disputes, the courts will decide who is legally entitled to live in the property and outline their legal rights and responsibilities.
Sale
If parties dispute whether the property should be sold, the court can order the sale of the property and the fair division of the proceeds.
TOLATA For Non-married Cohabitees
Though many believe this to be unfair, non-married cohabitees simply do not have the same rights as married couples or those in civil partnerships. This is why we always recommend that they have a non-marital cohabitation agreement.
In this circumstance, TOLATA can be used to form a trust on the property, determine who has proprietary rights, and split ownership between the two parties.
The Steps for Making a TOLATA Claim
Under Section 14 of TOLATA, ‘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’.
So, if you are a cohabitee or you have a financial stake in the property, you have the right to request the court to resolve your dispute concerning the ownership of the property.
Once you have determined that you want to make a TOLATA claim, you must complete the following steps.
Identify The Basis For Claim
The first thing that you must do is identify the reason for your dispute, as outlined above. Once you have established your claim, you then need to outline your legal and beneficial interest in the property, which may involve financial contributions or written agreements.
Attempt Alternative Dispute Resolution
Going to court can be an expensive, lengthy and stressful experience, so the courts will always encourage you to attempt Alternative Dispute Resolution (ADR). ADR is a popular method in commercial litigation and can consist of mediation or negotiation.
If you decide to go down the ADR route, be sure to document any agreements made to avoid misunderstandings.
Gather Evidence
IF ADR does not work and you wish to take the case further, gathering evidence at this point would be recommended. Some evidence that you may consider collecting includes:
- Titles deeds
- Financial records
- Correspondence or agreements
- Witness statements
Seek Legal Advice
It is suggested that you consult a solicitor experienced in property disputes, such as Brown Turner Ross, who will advise you on your rights and assess your case.
If you wish to take the case to court, an expert solicitor will help you draft documents, and they will even negotiate on your behalf and represent you in court.
Pre-action Protocol
Before any court claims can be started, you need to send a Letter Before Action (LBA). This formal legal letter demands a resolution to the dispute before court action takes place.
In this letter, you will outline the relief you seek, along with any supporting evidence you have. It is essential to provide a response timeline within this letter to give the recipient the necessary time to seek legal counsel. You should give a response timeframe of around 14-28 days.
You will then wait to receive a response. Remember, the other party may agree, disagree or provide a counterclaim.
Filing a TOLATA Claim in Court
If all ADR fails, you must file a claim in court. Most cases will be heard in the County Court, but more complex cases may need to go to the High Court.
Before filing your claim, you must determine the right court to claim in.
Completing a Claim Form
Because TOLATA disputes are considered to be ‘non-contentious’ civil matters, you must file an N208 form, where you will outline the details of your claim. This includes information about the property and the relief you seek.
At this point, you may need to pay your court fees; fees can differ depending on the case’s complexity.
You must then deliver the claim form and supporting documents to the respondent. You can choose to deliver the form yourself or via a solicitor.
Respondents Reply
It is not unusual for the respondent to file a defence or counterclaim. You can expect the respondent to argue against your claim or propose alternative resolutions, which you may agree to complete.
Case Management Conference
Once the court has accepted your case, it will hold an initial meeting to review it and outline a timetable. This timeline will pinpoint times when you may file further evidence, receive witness statements, and schedule the trial.
Court Hearing
The hearing will then be held, allowing both parties to present their arguments, evidence, and any witness testimonies that may be available.
The court will consider the following factors when making a decision:
- Financial contribution
- Agreements or implied trusts
- Legal and beneficial ownership
The judge will then issue a decision, which could be any of the following outcomes:
- An order for the sale or retention of the property
- Clarification of rights to occupy the property
- A declaration of beneficial interest
The court’s goal is to reach a fair resolution based on the case’s individual circumstances.
Enforcement
The decision will be enforced if the court orders a sale or payment. Additional legal steps may be required if the respondent does not comply with the court’s order.
How Much Does a TOLATA Claim Cost?
There is no set cost for a TOLATA claim, and the cost can differ substantially depending on the complexity of the case. You can expect to spend thousands on a TOLATA claim, but the exact cost can not be determined without understanding the intricacies of the case.
If you would like more specific information concerning the cost, you can contact our team and we may be able to assist you.
How Long Does a TOLATA Claim Take?
Much like the overall cost, the overall length of a TOLATA claim differs from case to case. There are a lot of factors that may impact the pace of the claim, including the timing of your legal representatives and the cooperation of the respondent.
You should expect that the claim can take anywhere from a few months to over a year to complete. To ensure the claim runs as smoothly as possible, ensure that all of the information you require for the case is ready to file.
Defending a TOLATA Claim
The most effective strategy for mitigating a TOLATA claim is to proactively implement measures with any cohabitees to prevent such a claim from arising.
If you are making a property agreement with someone, you need to ensure that you outline your intentions for the property and remain consistent with these intentions. It is even more beneficial for you to ensure you have any preliminary agreements in writing.
If you keep everything you need on record, you can use this as a defence for your TOLATA claim. Make sure that you keep a record of your financial contributions with time stamps, as this will help the judge understand your position if you do go to court.
We will always suggest that you negotiate a settlement in favour of going to court, as this can save you a lot of money.
Receive Support From Family and Property Law Experts
Through this article, we hope we have outlined everything you need to know about TOLATA claims. If you intend to file a TOLATA claim or require legal representation as the respondent of a claim, you’re in the right place.
At Brown Turner Ross, we have over 130 years of experience in family and property law, so we have the knowledge and expertise to provide you with the support and representation that you require.
Contact our team to find out more about how our expert lawyers may assist you.
(article updated for 2025)