TOLATA – What it is and how does it affect you

The Trusts of Land and Appointment of Trustees Act 1996 usually called TOLATA

is an act of Parliament of the United Kingdom which altered the law in relation

to trusts of land in England, Wales, Scotland and Northern Ireland.

There are two main types of application that can be made under TOLATA to

resolve disputes about the ownership of land and these are: -

a) to decide who is entitled to occupy

b) to decide the nature and extent of the ownership

When a marriage breaks down there are well established legal principles,

which have been specifically designed to deal with the break-up. However,

the position for unmarried couples is entirely different. Divorce law only applies

to married couples and the equivalent civil partnership dissolution, which

applies to same sex couples.

This means that co-habitees facing a relationship breakdown will have to

resolve matter accordingly to general legal principles. If the parties cannot

reach an amicable agreement between themselves then the only recourse

is to the law as governed by statute and precedent in the areas of contract

trusts and land.

If couples have simply “lived together” and there are financial issues on the

breakdown of the relationship at the present time there is no specifically

designed legislation to deal with such disputes.

There are some common misconceptions about co-habitation and one of

these is that there is such a thing as a “common-law wife” and a “common-law

husband”. This is not true. If a couple have co-habited then there are no

automatic rights but a co- habitee should first of all look at the Trusts of Land

and Appointment of Trustees Act 1996 (TOLATA).

Court proceedings under TOLATA are available to joint owners of property

where they are not married and to any person who believes they have an

interest in the property but whose name does not appear on the Title to the

property i.e. the property in the sole name of the co-habitees and the other

co-habitee wishes to claim an interest in the property.

If therefore is you are co-habiting with your partner and the relationship breaks

down then you should seek immediate legal advice to see whether you have

a potential claim in relation to the property. Legal Aid is available for this area

of work but is subject to the usual means and merits tests.

It would also be prudent to seek legal advice before you commence cohabitation

and this applies whether you move into your partner’s property

which is in his or her sole name or whether you purchase a property together

with is not put in joint names. Regrettably, there is no clear case law to direct

Courts on how they should apply English law analysis to family interest in homes.

Co-habitees must also take advice with regard to the issue of costs as the

Courts can decide who pays legal costs if a claim is successful or not.

At Roland Robinsons & Fentons LLP Solicitors we can advise you with regard to

all the above issues. If you need to talk to us about TOLATA matter contact Mr

D P Newell on 01253 621 432 or dpn@rrfsolicitors.com; Mrs Lynn Heap on 01253 621432 or lh@rrfsolicitors.com