TOLATA (The Trusts of Land and Appointment of Trustees)
What are TOLATA claims?
Property claims for couples who have been cohabiting and are not married.
What is the property law of TOLATA?
TOLATA stands for The Trust of Land and Appointment of Trustee Act. It is legislation which gives the courts powers to deal with the property where the couple are not married and either they own the property jointly or the property is in the sole name of one party and the other party has a beneficial interest, most likely through a contribution to the property or the mortgage without ever having their name on the title deeds.
What types of disputes are typically addressed through TOLATA claims?
Cohabiting couples on the breakdown of their relationship.
What evidence is needed to support a TOLATA claim?
It is most important to have evidence of the intention of the parties at the time the property was purchased, or they commenced living together in their shared arrangements. What were their intentions? Did they intend that this was a home for the two of them, to which they would both contribute, or was it always going to be the asset of one party with the other party simply paying an occupational rent? Evidence of common intention and obviously evidence of monetary contribution, including to any mortgage, are vital.
How long does it take to resolve a TOLATA claim?
A similar time as it would if the parties had been married, a minimum of twelve to eighteen months if the claim proceeds through court, although most claims settle.
Can I make a TOLATA claim if I contributed financially but am not listed on the property title?
Yes, you will potentially be able to do so depending on the nature of your claim and what was the intention between the parties at the time.
What are the steps involved in filing a TOLATA claim?
A letter would normally be written to the other party in the first instance setting out the claim and thereafter Particulars of Claim would be drafted and the proceedings issued in the civil jurisdiction in the County Court.
Are there alternatives to litigation for resolving TOLATA disputes?
Yes, all methods of ADR (Alternative Dispute Resolution) can be used in respect of TOLATA claims.
How can legal professionals assist with TOLATA claims?
A TOLATA claim is complex in terms of the relevant law of trusts and the understanding of the parties at the time and everyone should seek legal advice before embarking on a TOLATA claim or making a decision not to.
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Frequently asked questions
This depends on the nature and extent of work that we carry out for you and the level of experience of the lawyer or lawyers who work on your case. The more experienced the solicitor, the higher they hourly charge will be. We will discuss with you the most appropriate level of lawyer to do your work and we will allocate tasks accordingly. We do not carry out work on a fixed fee basis but we will provide you with our best estimate of what your legal costs will be and update that estimate as the case proceeds.
We can take initial steps as soon as you have dealt with the formalities for opening your file. The first step might be an initial letter to the other party or a referral to mediation. If you need to make a court application you will, in most cases, need to try mediation first. There are exceptions to this requirement which we will consider with you. If your case is urgent, it can be heard in a matter of days, or even that day in the event of an extreme emergency.
No. The court operates what is known as the “no order” principle and does not expect parents to go to court if they can agree arrangements for their children. If you find it difficult to reach an agreement between yourselves, try mediation. If you can agree arrangements, consider drawing up a written parenting plan. (link). The family team can help you with this.
The whole team is experienced advocates and we regularly represent our clients at court where possible by doing the advocacy ourselves. We will use the services of barristers where essential, such as in complex cases or final hearings, to save costs and to promote continuity and approach.
It's a bit of a myth when people say she or he is my common law wife or husband, there is no such thing. Unfortunately, the laws in this country don't protect unmarried couples as they do married couples. For example, if you own a property together, and one of you have made a huge contribution to that but you own it jointly, the court is likely to follow the legal title of the property. Additionally, if you have been living together for a very long time, you won't be entitled to any maintenance. You won't be entitled to any pension rights. So, you're quite unprotected in a way and people often sadly think that they have the same rights. You'd have to rely on trust law which can be very complicated and costly unfortunately.
Mullis & Peake have specialists in family, TOLATA and divorce law ready to help you. Our family team offer a free 40 minute consultation. Please call us on 01708 784000 to book an appointment. Come and meet us and see what we have to offer.
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Paul qualified as a solicitor in 2010 and specialises in Residential Property matters.
