TOLATA Claims — Property Disputes Between Unmarried Couples

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) is the primary legislation governing disputes between co-owners of property in England and Wales. It applies most commonly to unmarried couples who separate and cannot agree on what should happen to a jointly owned property — but it also applies to family members, business partners, and anyone else who co-owns property.

Unlike married couples, who have access to the financial remedy jurisdiction of the Family Court on divorce, unmarried couples have no automatic right to a share of their partner's property. Their rights depend entirely on the law of trusts and property — specifically, whether they can establish a beneficial interest in the property and, if so, what share they are entitled to.

Establishing a Beneficial Interest

Where a property is in one person's sole name, the other person must establish that they have a beneficial interest — that is, a right to a share of the property's value — before they can make any claim. The main legal routes are constructive trust, resulting trust, and proprietary estoppel.

A constructive trust arises where there is a common intention between the parties that both should share ownership, and one party has acted to their detriment in reliance on that intention. The most common basis is financial contributions to the purchase price or mortgage payments, but significant contributions to renovation or improvement work can also be relevant. The key case is Stack v Dowden [2007] UKHL 17, in which the House of Lords confirmed that the starting point for jointly registered property is equal shares, but that this can be displaced by evidence of a different common intention.

A resulting trust arises where one party contributes to the purchase price of a property held in another's name. The contributing party holds a beneficial interest proportionate to their contribution — so if they contributed 30% of the purchase price, they hold a 30% beneficial interest. Resulting trusts are less commonly relied upon following the Supreme Court's decision in Jones v Kernott [2011] UKSC 53, which confirmed that constructive trust analysis is the primary approach for domestic property disputes.

Orders for Sale Under TOLATA

Where co-owners cannot agree on what to do with a property, either party can apply to the court under TOLATA for an order for sale. The court has a wide discretion and will consider all the circumstances, including the purpose for which the property was acquired, the welfare of any children occupying the property, and the interests of any secured creditors.

In most cases, the court will order a sale — particularly where the relationship has broken down and there is no good reason to delay. However, where children are living in the property, the court may postpone the sale until the youngest child reaches 18 or leaves full-time education. The court can also make orders regulating the occupation of the property while the dispute is resolved.

Cohabitation Agreements — Prevention is Better than Cure

The best way to avoid a TOLATA dispute is to enter into a cohabitation agreement (also called a living together agreement) before or shortly after moving in together. A cohabitation agreement sets out each party's financial contributions, their respective shares in any jointly owned property, and what should happen if the relationship ends. It is not automatically legally binding, but a well-drafted agreement can significantly reduce the risk of a dispute and provide strong evidence of the parties' intentions if a dispute does arise.

PDA Law advises on both TOLATA claims and cohabitation agreements. We act for clients across Chester CH1/CH2, Ellesmere Port CH65, Wrexham LL11–LL14, Mold CH7, Northwich CW9 and Crewe CW1/CW2, as well as throughout Cheshire and North Wales. We offer a free initial consultation and clear, fixed-fee pricing for straightforward matters.