TOLATA: What is it?
Property ownership can be tricky. Buying on your own can be incredibly difficult, particularly in certain parts of the country. So it can seem like a good idea to share ownership with someone else, whether that’s a friend or partner.
However, that isn’t a guarantee for successful cohabitation. You might find that things don’t quite go according to plan and the situation sours. You could end up having to sell the property. And when you’re not married to the co-owner, this could throw up some potential challenges.
You may also manage to buy a home on your own and live with a partner. If you split, it may not always be as simple as the owner keeps the property and the former partner leaves.
This is when the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) can come into play.
What is TOLATA?
TOLATA gives UK courts the ability to resolve certain disputes about the ownership of a property or land. This means that if you and your co-owner or ex-partner disagree on what should happen with your home, the court can decide for you.
It allows the court to decide who is entitled to occupy the property and the nature and extent of ownership.
The act gives the court the ability to make orders such as:
- Forcing the sale of land or property
- Determining what share of a property each party owns
- Enabling third parties, such as parents or grandparents, to recover their financial interest in a property owned by the separating couple
- Enabling one party to regain access to a property when the other party refuses to leave
It helps in situations like an unmarried couple disagreeing on whether to sell a property.
Pre-action letter
The ownership of a property is one of the most complicated aspects of splitting up, particularly when you’re not married. In order to try to find an amicable solution, you should try to come to an agreement outside of court. Known as Alternative Dispute Resolution (ADR), this covers mechanisms like mediation and negotiation, which is typically done through solicitors.
Although it is not compulsory, your trial judge will typically want to know what you did before bringing your case to court. You may be penalised if you have not taken part in any form of ADR.
After ADR, you can then take your case to court. You do this by writing a pre-action letter, stating your reasons for bringing the issue to court. A solicitor will be able to help you draft a convincing letter. They will advise you which documents to include. This is then sent to all co-owners of the property and the court.
Pre-action protocol
Your co-owner, the person you are taking action against, then has 14 days to acknowledge receipt of the letter. They then have 30 days to fully respond to it, stating whether they accept or dispute your claims.
They may request any further information or documents. If they do, you are required to provide it, as part of the pre-action protocol.
Taking it to court
If you still can’t come to an agreement on your dispute, you can then begin court proceedings. You will have to submit a claim form, which will include a summary of what you are making a claim for and why you’re doing so. It will also include your evidence and what you wish the court to do.
You may then face a case management conference. This will be decided by court after you and the other party fill out an allocation questionnaire. Most cases will be concluded by the conference or after receiving the questionnaire. However, particularly complex cases will go to court.
Either you or the co-owner is able to make an offer to settle at any point before the trial.
Since there is no such thing as a common law spouse – and therefore no laws surrounding what happens to what you own together – you might want to consider establishing a cohabitation agreement in order to set out what will happen to your shared assets if your relationship ends.
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