This act, known as TOLATA for short, is a very important piece of legislation in relation to property ownership. This is particularly the case when properties are owned jointly by people who are not married to each other.
People who are married to each other have the additional protection of the Matrimonial Causes Act 1973 (MCA). This Act sets out how the court deals with matrimonial assets, including the matrimonial home, when parties choose to divorce.
The position is not as straightforward for unmarried couples who wish to separate. They do not have the protection of the MCA and therefore must rely on other protection.
TOLATA came into force on 1st January 1997. It enables a co-owner of property (TOLATA terminology) to make an application to the court where there is a dispute relating to a trust of land. This application is made under Section 14 of TOLATA and the court will take account of the matters set out in Section 15 of TOLATA.
Applications under Section 14 of TOLATA are usually made for the following reasons:
- To obtain an order for the sale of the property.
- To quantify the beneficial shares which each co-owner is entitled to.
- To determine whether a party has acquired a beneficial interest in the property (this is usually the case if the property is in one person’s name but another has made considerable contributions to it).
- To decide whether the property should be sold on the application of a third party, for example if a charging order has been obtained against the property and the owner of the charge seeks to sell in order to realise their interest. This would be the case if the mortgage was not paid and the mortgage company wanted their investment repaid to them.
If an application is made to the court as set out above, the court (except in cases where a Trustee in Bankruptcy has been appointed) must have regard to the following, in accordance with Section 15 of TOLATA:
- The intentions of the persons who created the trust.
- The purpose for which the trust was established.
- The welfare of any minor who occupies the property.
- The interests of any secured creditor of any of the owners.
If therefore you are a co-owner of a property or are living in a property owned by your partner but you have made substantial contributions to it that would be inequitable for a court to disregard, you can seek legal advice concerning making an application to the court under TOLATA.
In many cases it is possible to resolve the dispute by correspondence between your solicitor and your co-owner’s solicitor (or a party claiming beneficial interest in the property). It is, however, important that you seek legal advice as soon as possible to enable you to be informed about your legal position and for your interests to be protected.
If you require advice in relation to a TOLATA dispute or another property-related dispute, please contact Gwenno Price Jones, Head of Dispute Resolution at Allington Hughes Law, at Gwennopricejones@allingtonhughes.co.uk. Alternatively, you can contact one of our offices by telephone and our team will be happy to assist.
