When Unmarried Couples Separate – Property disputes and TOLATA Claims
It is thought that cohabiting or common-law partners are the fastest-growing type of family in the UK. However, it is still the case that you will have fewer rights as an unmarried couple than if you are married or in a civil partnership.
If you are not married or in a civil partnership, what happens with regards to property and land if the relationship should breakdown? In this article, we take a brief look at the area of law which can assist unmarried couples in respect of property disputes.
"TOLATA" – Trusts of Land and Appointment of Trustees Act 1996
What is TOLATA?
The Trust of Land and Appointment of Trustees Act 1996 (known as TOLATA) gives the UK Courts the ability to resolve certain disputes about the ownership of a property or land. A TOLATA claim can be issued and orders can be made that include:
· An order that forces the sale of land or property
· An order to reoccupy a former home when an ex-partner refuses to leave
· An order to determine what share of a property each party owns
· An order to allow third parties (parents/grandparents for example), to recover their financial interest in the property owned by the separating couple
Taken together, these applications permit a court to decide who are the legal and beneficial owners of a property, and in what proportions. The law of trusts and equitable accounting will determine the dispute.
Unmarried separating Couples and who owns the property
To determine the ownership of the property the Court must consider, amongst other things, what was expressly agreed and what the parties’ intentions were regarding ownership when the property was acquired.
Information that can impact on a court’s decision in this regard can include but not limited to:
If the property is in a sole name - whose name is on the ownership papers
If the property is in joint names –whether you own it as joint tenants or tenants in common
Whether there is a mortgage or any other debt secured against the property
Was there any written Declaration of Trust or Declaration of the Beneficial Shares?
Has either party acted to their detriment in any way not directly contributing to the purchase?
Property Dispute resolution for unmarried couples
Before a claim to the court is issued, a Letter Before Action will need to be sent detailing the claim. Furthermore, it is advisable to try and solve the dispute amicably outside of the court. Both parties involved in a civil dispute have a duty to negotiate to see if matters can be resolved before any Court proceedings and must consider alternative ways to settle a dispute, whether this is by correspondence between solicitors, mediation, or another form of ADR (alternative dispute resolution). Not doing so can result in the parties being penalised on costs by the courts.
If you are facing a property dispute or require help and advice concerning TOLATA, it is vital you seek advice from an experienced dispute resolution specialist regarding this difficult and complex area of law.
At Rose & Rose, our family and dispute resolution departments can provide you with expert advice and representation, we will guide you through all the available options open to you and find a solution that is in your best interests.