Couples who are not married have fewer rights than married couples when they separate. This can cause problems if they have shared a property.
In some cases, an individual may be able to make a claim under the Trusts of Land and Appointment of Trustees Act 1996, also known as ToLATA. The Act can establish the extent of each party’s ownership of a property and who has the right to live there.
Making a ToLATA claim
When a couple live together in a property that one or both of them owns, a dispute could arise over rights and ownership. If the property is only in the name of one party but the couple agreed that the other would share ownership, then that person could be entitled to part of the sale proceeds where, for example, they have contributed by paying the mortgage or for renovations or where they paid the deposit.
A claim can be brought to force the sale of the property or alternatively you may want the right to live there yourself, but your former partner refuses to leave.
ToLATA can also be used in respect of other relationships where parties have an interest in property together, such as friends and relatives.
What the court will consider in deciding a ToLATA claim
The court will look at what was agreed between the parties. Where a non-owner contributed to the purchase price, the court may find a resulting trust has been created, meaning that they are entitled to a share of the sale proceeds.
Alternatively, there may be a constructive trust, where there was an understanding that a non-owner would benefit from the property.
Where joint owners did not specify their intention as to ownership, the starting point for the court will be to assume that it is 50:50. Evidence will need to be provided if this is to be challenged.
Where only one party owns the property, the other party will need to provide details of a common intention to share the property, for example, conversations where the owner said that the property would be shared. If the non-owner relied on this to their detriment, this could also give rise to a claim.
Settling issues without court
ToLATA claims can be complex and sometimes lengthy. It is usually recommended that you try and resolve disagreements without the need for court.
An experienced trusts solicitor will be able to represent you in negotiations with the other party to try and find a solution that is acceptable to you both.
If this does not work, then you can attempt mediation, where the legal position will be explained to you both and you will be helped to try and resolve matters between you.
Dealing with issues in this way is generally preferable, being quicker and more cost-effective than litigation.
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