Jointly Owned Property and Separation – ‘TOLATA’
Cohabitation – where do I stand financially when things go wrong?
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More and more properties in England and Wales are being held jointly either as a result of a relationship or simply due to necessity due to the ever increasing costs of purchasing property where the prices are rising at a much higher rate than peoples wages.
Unfortunately there are no rules and no guarantees when it comes to cohabitation and doing it successfully.
At times you might find that things don’t go quite to plan particularly where a romantic relationship is concerned as sometimes those relationships do not last. You could end up having to sell the property and when you are not married the “Rules” relating to ownership are sometimes not that clear and can be particularly tricky.
This is where the Trusts of Land and Appointment of Trustees Act 1996 “TOLATA” is particularly relevant. In situations where property is owned by one party but another party is led to believe either expressly or impliedly that they will obtain a financial interest in the property then goes on to contribute financially either towards the mortgage or by way of home improvements and then if the relationship breaks down they are entitled to make a claim to the Courts so that the Court can decide who is entitled to occupy the property and the nature and extent of the ownership.
TOLATA is also useful in situations where an unmarried couple who are joint legal owners of the property disagree on whether to sell a property or who should stay and keep ownership of the property and who should transfer their share of the property to the other person/persons.
The Act of Parliament known as TOLATA gives the Court the ability to make such Orders as forcing the sale of land or property determining what share of a property each party owns where one of the parties is not a legal owner enabling third parties such as parents or grandparents to recover their financial interest in a property owned by for example a separating couple or enabling one party to regain access to a property when the other party refused to leave.
A lot of these disputes under TOLATA settle without the need to go to Court either by mediation or by informal agreement either between the parties themselves or via their respective solicitors. It is always preferable to settle the matter without the need for Court proceedings which is often known as Alternative Dispute Resolution or ADR as it is usually much more amicable and is definitely more cost effective than proceeding to Court and a final hearing if necessary.
Although it is not compulsory if you do pursue the matter through the Court system and to a final hearing the Trial Judge will typically want to know what the parties did as far as ADR is concerned prior to bringing the case to Court.
If ADR is not considered and often not attempted then it is likely these days that the Court will punish one or other of the parties in the form of costs recovery. Sometimes however ADR is unsuccessful despite the best efforts of both of the parties and the matter then needs to proceed to Court for a Trial Judge to make an Order and in effect a determination as to what should happen with regard to the property and the rights of each party.
Brearleys can assist with TOLATA particularly where the parties do not agree and we can either arrange mediation or attempt Alternative Dispute Resolution with the other party directly or via their Lawyers and if this is unsuccessful having already written a Pre Action Letter to the other party setting out your case we can then assist you in taking the matter to Court and to a final hearing in front of a Judge if necessary.
We are experts in all stages of TOLATA and can also deal with any claims that involve the children in ensuring that they have a right to live in a reasonable property which is often known as a Children Act Claim.
Brearleys can offer a fixed fee or hourly rates for pursuing TOLATA Claims and we will deal with the matter in a way that is most cost effective to you whilst also protecting your interests in the property as far as possible.
Costs will be transparent throughout the process and kept to a minimum as far as we can to get the outcome you would like.
We will deal with the matter sensitively but also firmly where necessary to try and ensure that the relationship between you and the other party remains as amicable as possible in this often very difficult and stressful time.
If you do require advice and assistance in this area of law please contact Martin Oliver or his Assistant Annalea McVittie or call 01484 501764 to speak to any office.
Email [email protected]
For a no obligation chat about your options and the likely cost for you to make the decision that’s best for you .