Is it TOLATA to make a claim?

It’s unlikely to feel like home sweet home when a TOLATA (Trust of Land and Appointment of Trustees Act) claim becomes necessary.

You guessed it, there's a lot of heat in the kitchen. Or perhaps, the courtroom.

What is a TOLATA claim?

Where co-owners of a property, cohabitees, or any other individual who may have contributed financially to a property, find themselves in a dispute over it, a TOLATA claim can help to resolve issues.

Whatever the situation, the process of filing a TOLATA claim through the court can help to resolve issues. These may include problems such as who owns the property, who lives in the property, and whether or not to sell the property.

If the decision is to then sell the property, it may not be as simple as the owner(s) keeping the money from the sale. Both parties also may not be able to agree on who stays or who goes.

Courts in England and Wales can make the following orders if parties cannot come to an agreement through alternative dispute resolution:

  • Enforce the sale of the property
  • Decide on each parties’ entitlement to the property
  • Allow third parties to retrieve their financial interests in the property
  • Authorise access to the property if one party is refusing to cooperate

When can a TOLATA claim be used to gain rights over a property?

An individual may be able to claim that they have ownership of a property through a constructive trust claim. This is governed by TOLATA.

In order to establish a successful claim for ownership of a property, the individual and their solicitor need to show all of the below:

  • A common intention – Such as where both parties agreed on who would pay the mortgage, deposit or other financial contribution, such as renovations
  • Detrimental reliance – That the individual in question relied on this agreement to their detriment, here meaning, that they are ‘worse off’
  • Denial of rights – This means that the individual has not received the right or benefit which they expected to receive. In this case, ownership of the property, perhaps a proportion of the sale price, etc

Note of caution about TOLATA claims

At a first glance, a TOLATA claim may seem quite similar to the process of dividing out assets in a divorce. However, this can be far from the truth.

In a divorce, the Matrimonial Clauses Act provides for a court to be ‘fair’. As such, in theory, assets might be divided straight down the middle, with each party taking a fair share of the overall estate.

By contrast, with TOLATA claims, the court seeks to discover what can actually be proved about the parties’ intentions. The court actually has no obligation to be ‘fair’ when the parties are unmarried. Hard evidence and a detailed case, even when sending the first letter, is key to winning over a court in your favour.

For further information and trusted legal advice regarding TOLATA claims, or other legal matters, get in touch with the team at Carlsons Solicitors. We’ll be happy to provide bespoke legal advice for your particular circumstances.

Landlords & TenantsGuest User