In this article, I explore what unmarried co-habiting couples should consider where the ownership or rights over shared property cannot be resolved without intervention. Such matters are dealt with under a piece of legislation (an Act) called the Trust of Land and Appointment of Trustees Act 1996 (the Act). This is commonly referred to as TOLATA.
What does TOLATA Mean?
TOLATA provides a legal framework for the resolution of property and land ownership issues. In the context of family law, it commonly affects unmarried couples and families whereby there is no will (living or deceased) that governs how property or land should be allocated or owned.
A TOLATA claim can only be made if one of the following types of trust are established:
- Express Trust – where people are co-habiting
- Constructive Trust – the existence of an agreement between the co-owners
- Resulting Trust – the existence of a situation that protects the other party (such as when only one person is a registered property owner)
- Estoppel Claims – where one person has relied on the promises of another
These claims are held in either the County Court or the High Court.
Why does understanding TOLATA matter to me?
If you or your partner disagree with who has certain rights over property or land, the courts have power to make decisions on your behalf. The courts can do one or more of the following:
- Force the sale of property or land;
- Decide the share or allocation of rights to identified people;
- Enable other people to recover financial rights over the disputing property or land (such as family members who have lent money or invested in the property);
- Provide rights of access to the property or land where this is being denied.
What happens during a TOLATA claim?
The Act requires certain steps to be taken before a judge can review the matter. The Act encourages those who do not agree with what to do with the property or land (disputants) to talk and find a way to self-resolve the matter. This may be by using mediation or negotiation or encouraging discussions to be held between them. These are known as Alternative Dispute Resolution methods or ADR for short. The requirement to consider using ADR remains constant until the conclusion of the matter, which means that you should always have ADR as an option until the matter has been resolved.
Step 1 – Pre-action letter
The Pre-action letter is a formal document that sets out the issues and reasons for asking the Court to review your matter. It is important to get this right and be very clear about what caused the issues, how you have tried to resolve the matter, and you need to provide documents and evidence to support your claim. This letter must be sent to everyone who co-owns or has legal rights in the property, and also to the Court.
Step 2 – Pre-action protocol
Upon receipt of the pre-action letter, the co-owner has 14 days to acknowledge that they have received it. Following this, they have 30 days to reply in full to the claim. In their response, they must confirm if they accept or dispute the claim. They can request further information or evidence which the claimant must provide.
This process is designed to help you understand the issues and attempt to agree your own solutions. However, if you cannot, you can commence a claim in the courts.
Step 3 – Going to Court
This starts by submitting a claim form and providing the Court with a summary of what is being claimed and why, and how you have attempted to resolve the matter. You will also need to complete an allocation questionnaire.
Once the claim has been accepted, you may be invited to attend a Case Management Conference which will set out the next steps and dates for hearings.
You will be encouraged to settle the dispute throughout the management of the case and should be prepared to negotiate this from the outset.
Attempting to settle – Part 36 Offers
A formal offer to settle is made using Part 36 of the Civil Procedure Rules. This follows a set format and will require a response to accept of decline the offer. Part 36 offers and are reviewed by the Court after the trial when it considers who should pay costs for the proceedings. However, they are not disclosed during the hearing. Part 36 offers can therefore have costs consequences if they are refused, depending on the outcome of the hearing.
If you need assistance with any of the above issues or require support with your separation, please contact Sima directly by calling 02073531746 or via email: clerks@simanajma.com.
