ToLATA - A guide for unmarried couples who are separating

What happens when a couple who are not married but own a property together decide that they need to separate?

Most people are surprised to find out that the legislation that governs this situation is completely unrelated to the Family Law legislation, Matrimonial Causes Act 1973. As such the situation is also not usually dealt with by Family Solicitors, but Dispute Resolution Solicitors, as it essentially is a dispute over property ownership, whether going to court is required or not.

ToLATA

The Trusts of Land and Appointment of Trustees Act 1996 (known as TOLATA) gives Courts certain powers to resolve disputes about the ownership of property (or land).

A ToLATA claim can be issued:

  • To force the sale of land or property.
  • To reoccupy a former family home when an ex-partner refuses to leave.
  • By parents/grandparents wanting to recover their financial interest in the property. 
  • To determine the share you each own.

Who occupies and who owns the property

There are three main types of application that can be made under ToLATA to resolve disputes about land. These are:

  • to order a sale of the property, enabling an owner to realise their financial interest,
  • to decide who is entitled to occupy, and 
  • to decide the nature and extent of the ownership of a property owned by two or more people.

Taken together, these applications permit a court to decide who are the legal and beneficial owners of a property, and in what proportions.

There are complementary powers in ToLATA that allow a court to direct the owner of land to behave in a certain way. In disputes about co-ownership, these powers are used most frequently to require a co-owned property to be sold so that the proceeds can be divided.

Limitations

ToLATA limits a court to deciding on co-ownership of property. It does not give the court the power to vary that co-ownership, and adjust the proportions that each person owns.

Alternatives to court

Michelle Hayter, a Partner and Head of our Dispute Resolution Team, explains “The person planning to make an application should consider alternative ways to settle the dispute. Frequently, we use are mediation and negotiation to resolve the issues without involving the courts. This is not compulsory, but it is positively encouraged and the Judge dealing with the case, if it does escalate to court, will be keen to see if other methods of resolution have been tried and can impose penalties relating to the costs of the proceedings.”

Our Dispute Resolution Team are happy to discuss any issues that this raises for you. If you have any questions, you only have to ask us at Frettens. Please call 01202 499255 and Michelle or a member of the team, will be happy to chat about your situation and your particular requirements.