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Separating from a partner is a highly stressful time, made all the more so if there are disputes surrounding the ownership of a property that has been shared during the relationship.

The team at Poole Alcock is on hand to guide you through the complex TOLATA claims process to ultimately find a resolution as smoothly as possible.

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What is a TOLATA claim?

The Trust of Land and Appointment of Trustees Act 1996 (TOLATA) provides a Court with power to resolve disputes regarding the ownership of a property when, for example, a relationship ends and the parties are unmarried, siblings inherit a property after the death of their parents or individuals who have invested in a property together.

Disputes between separating parties may surround who owns the property, who will retain the property or whether the property should be sold.

The welfare of any children under the age of 18 will be considered by a Court within a TOLATA claim along with a range of other factors including who pays the mortgage and whether the occupier should pay an occupation rent in an equitable account exercise, all of which will be taken into account when finding the most appropriate and viable resolution for all interested parties.

Making or defending a TOLATA claim

No matter the dispute, a TOLATA claim will provide Courts with the authority to order a number of things, including:

  • Force the property to be sold
  • Declare how much of the property each party owns and therefore, how the proceeds of the sale are to be shared
  • The timing of any sale – it may be delayed to take into account the welfare of children or other vulnerable parties
  • To make decisions as to an equitable account and give considerations as to who paid the mortgage, who was in occupation and whether any major renovation / building works have been done by one party which has increased the value of the property
  • Who will have conduct of the sale, including ordering that a party may not need to be involved in the sale and even ordering that a party is to vacate the property to permit the marketing and sale without obstruction.

Of course, other factors, such as whether a party can remain living in the property, or if one party wishes to buy the other party out, can all be considered in settlement of any dispute and our expert team will discuss all options that may be available to you.

Why choose Poole Alcock?

With over 130 years experience, Poole Alcock is ideally placed to support you, whether making or defending a TOLATA claim, to find a reasonable resolution for all involved.

At each stage we aim to ensure the matter can be resolved outside of Court, utilising the expertise of our Alternative Dispute Resolution team. In cases where Court proceedings have been deemed necessary, we will be with you each step of the way.


What will be considered in a TOLATA claim?

The important thing to appreciate when proceedings are commenced is that the Court, if asked to sell the Property, will usually have no discretion over this and will order that the Property be sold.

A TOLATA claim will look at a number of details, therefore, including whether someone has the right to seek that the Property be sold and, if so, what happens to the money realised from the sale. One key thing the Court will need to determine is what interest a party has in a property and to determine that the following will all be considered in the dispute process:

• The name of the property’s deeds

• How the property was funded when bought

• Any declaration as to ownership made at the time the property was purchased

• Whether it was purchased as ‘tenants in common’ or ‘joint tenants’

• Mortgage contributions

• Who is living in the property

• Any significant improvements made to the property

Will I have to attend court with a TOLATA claim?

Attendance in Court will be necessary if a resolution has not been found during the negotiation stage. Our team will work with you to avoid Court proceedings wherever possible.

How long will a TOLATA claim take?

Timescales for a TOLATA claim will vary greatly depending on each individual situation and whether an agreement is reached prior to the conclusion of Court proceedings. If Court is deemed necessary to resolve a claim, once the claim is issued, it takes on average 6 months to be listed for trial. It may take up to 18 months for a case to be finally determined from instruction and, of course, if a property is to be sold, subject to the interest and the market conditions, it may take additional time. As you can see, timescales are not certain.

What is the process for TOLATA claims?

If a dispute cannot be resolved outside of Court the following steps will commence:

1. Letter Before Claim – This will set out your claim and provide any evidence to support it.

2. Response from ex-partner – Following the Letter Before Claim, your ex-partner will have a set time period in which to respond.

3. Negotiations / agreements – Negotiation at this stage is crucial to avoid Court proceedings, avoiding high costs, lengthy Court waiting times and, of course, stress.

4. Court proceedings – If a settlement has not been reached, Court proceedings will commence. At the conclusion of the case, a Judge will determine the outcome of what will happen to the property.

It is important to remember that settlement can occur during the court proceedings stage too (and will be actively encouraged usually). Options which may not be available to the Court (e.g. agreeing that one party gets a higher share of the net proceeds than what would legally be permitted) can be achieved through negotiations and such resolution can bring the proceedings to a conclusion more swiftly, at lower cost and reducing the stress and uncertainty of a final hearing.

Meet our TOLATA specialists

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