What is a TOLATA case?
TOLATA, short for the Trusts of Land and Appointment of Trustees Act 1997, governs the legal relationship between property owners and its occupiers. Essentially, it’s a tool to untangle property disputes, especially for people who aren’t married but share ownership or occupancy of a home.
How does TOLATA affect cohabiting couples?
TOLATA is all about trusts of land. In simple terms, it recognises that the person legally listed as owning a property (the trustee) may not be the only one benefitting from it (the beneficiary).
For example, in a cohabiting couple, one person might not be named on the property’s legal title but could still have a claim to a share of its value. Alternatively, both partners might be legal owners, but the property’s equity may not necessarily be split equally between them.
If a separating couple can’t agree on ownership or what happens to the property, TOLATA gives them the option to ask the Court to decide. Common questions the Court might address include:
- Who owns a share of the property?
- What proportion of the property’s value does each person own?
- Who can occupy the property?
- Should the property be sold, and if so, when?
How does TOLATA actually work?
The Court starts by asking: What was the original intention of the parties when they acquired the property?
If there’s a written agreement (for example, a declaration of trust), this will provide a clear answer. But in many cases, there’s no formal agreement, so the Court has to infer what the parties intended based on their actions and circumstances.
The Court will consider:
- Discussions between the couple before buying the property.
- Why the property was purchased in one or both names.
- Whether the couple had children.
- How finances were managed during the relationship.
Each case is highly fact-specific, and the Court will assess the unique circumstances of the couple’s situation.
How is TOLATA different from divorce cases?
The key difference lies in how the Court approaches the property.
- In TOLATA cases, the focus is on the past: What did the parties intend when they acquired the property? It’s a question of unravelling history.
- In divorce cases, the focus is on the future: What is a fair division of property based on the parties’ current and future needs?
This difference often leads to very different outcomes. For example, someone might be entitled to 50% of a property under divorce law but only 20% under TOLATA, depending on the circumstances.
What about legal costs?
Legal costs are treated differently in TOLATA cases compared to family law disputes.
In TOLATA claims, the Court often orders the losing party to cover a significant portion of the winning party’s legal costs (around 60-70%). By contrast, in family court proceedings, the general rule is that each party pays their own costs unless there are exceptional circumstances i.e. not openly negotiating early on.
This means anyone pursuing a TOLATA claim must carefully weigh the risks of potentially paying the other side’s legal fees if their claim is unsuccessful.
Can married couples use TOLATA?
Generally, disputes over property in divorcing couples are resolved under family law (e.g., the Matrimonial Causes Act 1973). However, there are situations where TOLATA can apply to married couples—for instance, when one spouse seeks a share of a property they aren’t otherwise entitled to under family law.
What is the best way to avoid TOLATA disputes?
The best time to address these issues is before you buy a property. You can clearly record your intentions through a declaration of trust or other legal agreements, which can save significant stress and expense down the line.
How can whatwouldajudgesay.com help?
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Contact us today to learn more about our fixed-fee service and how we simplify the divorce process for you. Feel free to give us a call on +44 (0)20 3951 0212 or email hello@whatwouldajudgesay.com or use get started to share your unique situation.