ToLATA Claims
(Last Updated: 03/03/2023)
29/07/2022
19
6 min read
If you have contributed towards a property and do not feel that you are getting your fair share, you may be able to make a ToLATA claim for a lump sum, or the right to occupy the property. Our expert solicitors can help.
What are ToLATA Claims?
The Civil or High Courts can determine ownership of a property where multiple parties claim an interest. They do this using a piece of law called the Trusts of Land and Appointment of Trustees Act (TOLATA). These claims follow Civil Procedure Rules (CPR).
ToLATA claims can determine: | The court does not have the power to: |
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ToLATA claim for unmarried couples
Most Trusts of Land and Appointment of Trustees Act claims are brought by cohabiting couples who are not married or civil partners. Unmarried cohabitees do not have the same rights, despite the common misconception that 'common law marriage' grants them some level of protection - this is a myth.
To avoid this, SAM Conveyancing recommend having a cohabitation agreement, or Deed of Trust, drawn up as early as possible. Ideally, before you fall out with each other.
Without some form of protection in place, conflicts usually arise where one party believed that their contributions toward the household, for example mortgage payments, would entitle them to a share, or larger share, in the property. Another party (usually but not necessarily the other half of the couple) disputes this claim.
The Trusts of Land and Appointment of Trustees Act can be used to form a trust on the property and determine what the split of ownership is between the parties. It can also be used to make an order (see limitations above) on what happens to the property.
ToLATA can also be used for:
- Removing oneself from the title deeds or mortgage (giving up your beneficial share)
- to recover a sum - ie. you made a contribution towards the deposit on a property for your nephew and want to recuparate that amount
Can you settle out of court?
The Trusts of Land and Appointment of Trustees Act allows for an out of court settlement to be made, so long as:
- It is fair
- It is in the best interest of any children in the relationship
- Both parties agree
It is best to try and reach a settlement rather than taking the claim all the way through court, as this will save time, legal costs and stress. You can do this through mediation, or through solicitor negotiation. Get in touch to see how we can help.
Making a ToLATA Claim
If you have cohabited, or otherwise have a financial stake in a property, you have the right to make an application to the court under the Trusts of Land and Appointment of Trustees Act:
‘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 under this section.’ (S14 ToLATA)
- 1
Letter before claim - Setting out claimants case, with evidence
- 2
Response - Setting out defendants case (there is a short time limit to make this response)
- 3
Early Settlement - Attempt to settle through mediation or negotiation
- 4
Court - If settlement can't be reached, application is made to Court
Contact us to instruct our expert family solicitors to help at any stage.
To make a claim you must declare exactly what actions you took which entitle you to a share, whether you contributed to the deposit, the mortgage, maintenance or improvements. You should also aim to prove that there was a direct or implied agreement between you, that you would share the property.
In situations where you can show that you have been encouraged by the other party to act to your detriment, in reliance of your claim on the property, this will help your case. This is most common in situations where one party has left work to raise the couple's children, while the other has continued to work and become solely liable for the mortgage.
If the court find that you do have a beneficial interest in the property, they can impose a constructive trust to compensate for your share.
Defending a ToLATA Claim
Prevention is the best cure:
- 1
Discuss your intentions for the property honestly, openly and at the beginning of the relationship or cohabitation. Set these out in writing.
- 2
Keep a record of contributions made toward the property and whether they are intended as a gift or an investment
- 3
Get your beneficial shares legally formalised with a deed or declaration to protect the interests of both parties and avoid conflict.
That being said, you are probably here because it is too late for that and you are already being threatened with a claim. Gather whatever evidence you have that may disprove the claim, including emails, texts etc.
If at all possible, instruct a family law solicitor to determine the risk that the claim will succeed in court and to negotiate accordingly.
ToLATA Court Fees
Court fees, including for ToLATA claims, are normally recovered from the losing side - this means that the court can order the loser to pay for the winner's costs. The amount of ToLATA court fees will vary depending on what claim you are making under the Trusts of Land and Appointment of Trustees Act.
Check out this guidance on civil and family courts fees for a breakdown based on the value of the claim. Or, get in touch to instruct a solicitor to review your situation and assess your total costs for you.
Frequently Asked Questions
LEGALOWNER
Written by:
Caragh Bailey
Caragh is an excellent writer and copy editor of books, news articles and editorials. She has written extensively for SAM for a variety of conveyancing, survey, property law and mortgage-related articles.
Reviewed by:
Andrew Boast
Andrew started his career in 2000 working within conveyancing solicitor firms and grew hands-on knowledge of a wide variety of conveyancing challenges and solutions. After helping in excess of 50,000 clients in his career, he uses all this experience within his article writing for SAM, mainstream media and his self published book How to Buy a House Without Killing Anyone.
