TOLATA: Property Rights for Unmarried and Co-habiting Couples

Year Published: 2019

It is surprising how many couples believe that they have rights over another’s property if they have been in a long-term relationship that has come to an end.

The concept of the term ‘common law wife’ is widely misconceived. There is no legal right to another’s property by virtue of a long-standing relationship. Similarly, clients often ask us for advice about “co-habitation rights” which is another concept that is widely misconceived.

The courts will, however, get involved where a non-legal owner has a beneficial interest in the property. Common examples of this are:

  • The parties are joint legal owners with no express declaration of trust but one party has contributed considerably more to either the purchase price or the renovations and wants to depart from the presumption of 50/50 ownership;
  • One party is the sole legal owner but another party has relied upon the words or actions of the sole owner and believe that they have an interest in the property and that they have been disadvantaged by relying upon the words or actions of that sole owner.
  • The parties are legal owners but have entered into a declaration of trust which confirms that the shares are not 50/50 and there is a reason to depart from this.

Recently, we are finding that enquiries of this nature are increasing as many couples are now choosing to live together before getting married. This type of scenario is common. In fact, it is not just when a relationship has broken down that this type of dispute arises. Another common scenario is where the parties originally entered into some form of business arrangement to redevelop property, and that business relationship has broken down.

Birdseye view of properties

What is “TOLATA” and How Can I Make a TOLATA Claim?

The law on this area is governed by the Trusts of Land and Appointment of Trustees Act 1996. This is commonly referred to as ‘TOLATA’ and is a matter for the civil courts, not the family courts.

The court has various powers which include: the power to make a declaration as to the shares in the property, order for the property to be sold or order that one party provides an account to the other party for money spent.

These types of disputes are complex and can be costly, so it is imperative that you take legal advice from the outset.

You should consider what evidence you have to support or defend a TOLATA claim at an early stage.

Due to the nature of these types of disputes, the outcome of each case is fact-dependent and the courts will look at many variables such as: who purchased the property, why it was not acquired in joint names (if relevant), who spent money on the property, what discussions took place at the outset and whether any agreement changed over time.

Avoid Property Disputes in the Future

If you are about to purchase a property with somebody whom you are not married to, you should think about what you can do to prevent there being a future dispute. We would advise that you both take separate advice on how the beneficial interest in the property should be split. This is because your conveyancing solicitor will not be able to provide you both with this advice as they will be conflicted.

If you require more advice on TOLATA claims, please contact Kathryn Clare, Dispute Resolution Associate, on 01244 305955 or email [email protected], for further assistance.

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