When relationships between cohabitees fail, disagreements can arise involving property and the parties’ legal rights. Sometimes, the dispute cannot be satisfactorily resolved – in which case, it is possible to take action under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
If you are involved in a property ownership dispute with your former partner (or another family member), contact the property litigation team at mfg Solicitors for prompt advice.
Disputes can usually be avoided in the first place if cohabitees take early steps, such as entering into a declaration of trust of the property at the time of the purchase; entering into a cohabitation agreement; and keeping records of property-related payments made by each party.
What is a TOLATA claim?
TOLATA is an important legal tool for cohabitees involved in a property dispute. This is because (unlike married couples and civil partners), they do not have automatic property rights.
Property disputes most often arise when the property is purchased in the name of one party only, but the other party has made substantial contributions to the purchase and/or ongoing property-related payments.
For example, you may have paid money towards the purchase price; regularly contributed to mortgage payments and outgoings; or paid for renovations. If your ex-partner is refusing you a fair share of the property, the TOLATA framework provides you with a solution.
What can the court decide?
The court make a declaration as to the nature and extent of your property interest (sections 14 and 15 TOLATA). The court can also:
- Order the sale of property to enable a fair distribution of the sale proceeds
- Order a deferred sale of the property if appropriate. In V and W [2020] EWFC 25, one or the parties wanted a quick sale; the other wanted it postponed for as long as 8 years (when their youngest child reached 21 or left full time education). The judge ordered a sale as soon as possible but it was a finely balanced decision in the circumstances
- Calculate appropriate financial adjustments by way of ‘equitable accounting’, eg where one party has spent more on mortgage payments and property repairs than the other party
The court will take into account various factors - it is not just about the amount of money you and your ex put into the property. For example, it will consider both parties’ intentions, what they intended the property to be used for, and whether there are any children living in the property.
Reassuringly, most claims are settled before they reach a final hearing. We will work hard to resolve the issue and protect your interests, and starting legal action can help achieve a prompt resolution.
How can I make a claim?
We will obtain a copy of the registered title of the property from HM Land Registry; and ask you for full details about any agreements made with your ex relating to the property. We will most likely request the file from the solicitors who dealt with the purchase.
Also, we will need details of who paid for the property at the time of purchase, the mortgage payments and other property-related expenses you have paid out. Once we have the initial information, we will advise you on the next steps.
How we can help
These types of cases can take some time to resolve, so do consult us early. If you are involved in a dispute with a cohabitee involving property, please contact Claire Liddy, an associate solicitor in the property litigation team on 01527 831691 or email claire.liddy@mfgsolicitors.com.