TOLATA Claims: Sorting Out Property When You Split
Unmarried couples often discover that while relationships can be straightforward, property law is rarely so. If your name isn’t on the title deeds, you may feel powerless—yet the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) could be your route to securing a share in the family home. Understanding how TOLATA works, and what evidence you’ll need, is essential for anyone seeking to establish or protect their interest in a property.
When Does TOLATA Apply?
TOLATA is designed for situations where two or more people have an interest in land or property, but the legal ownership doesn’t reflect the true arrangement. This is especially common for unmarried couples, friends, or family members who buy or live in a property together. You might have a claim if:
You contributed to the deposit, mortgage, or significant renovations.
There was a clear promise or understanding that you would have a share.
Your conduct or communications (such as texts or emails) show a joint intention to share ownership.
It’s a common misconception that living together for a certain period gives you “common law” rights—this is not the case in England and Wales. TOLATA is often the only way to assert your interest if you’re not on the legal title.
Legal Tests: What the Court Considers
The court’s approach is rooted in fairness but guided by strict legal principles. The two key questions are:
Was there a common intention to share the property?
This can be express (a direct agreement) or inferred from conduct (such as sharing bills, making payments, or discussing ownership).Did you act to your detriment in reliance on that intention?
Detrimental reliance means you did something significant—like paying towards the mortgage, funding renovations, or giving up other opportunities—because you believed you would have a share.
The leading case, Kernott v Jones [2011] UKSC 53, confirms that the court can infer or impute a common intention from the parties’ actions, even if there was no written agreement. However, the burden is on you to prove both the intention and your reliance.
Evidence Essentials: Building Your Case
Success in a TOLATA claim depends on the quality and quantity of your evidence. The court will expect you to provide:
Bank statements showing regular payments towards the deposit, mortgage, or household expenses.
Messages or emails (such as WhatsApp or text) where ownership or sharing is discussed or promised.
Invoices or receipts for DIY work, renovations, or improvements you paid for.
Witness statements from friends or family who can confirm your contributions or the understanding between you and the legal owner.
It’s not enough to show you lived in the property or helped with day-to-day bills. The court is looking for clear evidence that you contributed with the expectation of acquiring a share.
Outcomes: What Can the Court Order?
If your claim succeeds, the court can make several types of orders:
Declaration of beneficial interest: The court formally recognises your share in the property, which can be a fixed percentage or based on your contributions.
Order for sale: If the relationship has broken down, the court can order the property to be sold and the proceeds divided according to each party’s interest.
Occupational rights: In some cases, the court may allow one party to remain in the property for a period, especially if children are involved.
It’s important to note that the court will not automatically split the property 50/50. The outcome depends on the evidence of intention and contribution.
Common Pitfalls and Contentious Points
Lack of written agreement: Verbal promises are harder to prove, so contemporaneous messages or emails are invaluable.
Joint accounts: Payments from a joint account can be ambiguous—be ready to show who actually funded the contributions.
Improvements vs. maintenance: Only significant improvements (not routine maintenance) are likely to count towards a beneficial interest.
Delay: Waiting too long to bring a claim can weaken your case, especially if memories fade or evidence is lost.
Case Law Spotlight: Kernott v Jones [2011] UKSC 53
This case is the cornerstone for TOLATA claims. The Supreme Court held that where parties’ intentions change over time, the court can infer or impute a new agreement based on their conduct. It’s a reminder that your actions—and your evidence—matter as much as any original agreement.
Practical Help: Caira’s Bundle Builder
Preparing a TOLATA claim can be daunting, especially if you’re self-representing. Caira’s bundle builder can help you draft your Part 8 claim, assemble your chronology, and organise your evidence—making the process less overwhelming and more efficient.
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Disclaimer: This blog post provides general information for educational purposes only. It is not legal advice. Outcomes can vary based on your personal circumstances.
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