TOLATA Solicitors

What is a TOLATA claim?

A claim under the Trusts of Land and Appointment of Trustees Act 1996, commonly referred to as a TOLATA claim, is a legal process used to resolve disputes about the ownership or use of a property. These types of disputes often arise between cohabiting or unmarried couples, friends or relatives who have bought a property together, or family members following a breakdown in relationships.

At Wilson Law, our team of specialist property litigation solicitors advises clients across London and Surrey. With decades of combined experience in resolving complex property disputes, we help clients understand their legal position and take action to protect their interests.

What are trusts of land?

When two or more people own a property, they typically hold the legal title jointly. In most cases, they also hold the beneficial interest in the property under a trust. This is called a trust of land. Trusts of land can be created in different ways:

• By a formal declaration of trust
• By transferring the property into joint names
• By conduct – for example, where one party contributes financially but is not on the legal title

Property ownership disputes can become particularly complicated where the legal ownership does not reflect the financial contributions made. For example, one party may have paid part of the purchase price, contributed to mortgage payments or funded improvements to the property.

If there is a disagreement about the nature of ownership or who is entitled to what share, it may be necessary to seek a legal determination through a TOLATA application.

Joint tenants or tenants in common?

When a property is jointly owned, there are two main ways the beneficial interest may be held:

• Joint tenants: All owners are treated as owning the property as a whole. There are no defined shares, and if one person dies, their interest automatically passes to the others.
• Tenants in common: Each person owns a defined share of the property, which may be equal or unequal. Their share can be left to someone else in a will.

A joint tenancy can be changed to a tenancy in common by a process called severance. This is usually done by serving a written notice on the other co-owner and recording it with the Land Registry. Severance is often advisable where a relationship breaks down or if one party wants to protect their individual share.

While the Land Registry title might suggest how a property is owned, it is not always conclusive. In many cases, the courts can look beyond the title and determine what share each person is entitled to based on contributions and intentions.

What is an implied or constructive trust?

Even if the legal title does not reflect someone’s financial interest in a property, the courts can recognise other forms of ownership.

• An implied trust may arise where it was understood between the parties that they would share the property in a certain way, even if this was never formally written down.
• A constructive trust can arise where it would be unfair for one person to keep the whole property given the other person’s financial contributions or the overall circumstances.

Each case is assessed individually. It is important to gather evidence, such as records of who paid the deposit, mortgage payments, utility bills, or funded renovations.

What is the Trusts of Land and Appointment of Trustees Act 1996?

The Trusts of Land and Appointment of Trustees Act 1996 is a law that sets out how disputes between people who jointly own land or property should be resolved. It is often used when people cannot agree about:

• Who owns the property and in what shares
• Whether the property should be sold
• Who should stay in the property
• How the sale proceeds should be divided

The court has the power to make a range of orders under the Act, including:

• A declaration about each person’s share
• An order for the sale of the property
• An order allowing one party to buy the other out

At Wilson Law, we aim to resolve disputes amicably and avoid unnecessary court proceedings where possible. However, if an agreement cannot be reached, we can assist with making an application to the court under the Act.

We will help gather the evidence needed, including documents and records showing the parties’ intentions and financial contributions. This may include details of who paid the mortgage, bills, or invested in the property.

The court will consider several factors, including:

• The purpose for which the property was bought
• The intentions of the people involved
• The needs of any children living in the property
• The interests of any secured creditors

If the court confirms that an implied or constructive trust exists, it will usually be binding on the parties.

Key TOLATA case law

Bagum v Hafiz and Hai (2015)

This case involved a dispute between a mother and her two sons over ownership of a family property. After a breakdown in the relationship, one son moved out and wanted the property to be sold. The mother wanted to remain in the home, and the other son supported her.

The court ruled that although it could not force one party to sell their share directly to the other, it could allow one party the opportunity to buy out the other before ordering a sale on the open market. This decision allowed the family to retain the property while protecting everyone’s financial interests.

The case confirmed that the courts have wide discretion when making orders under the Trusts of Land and Appointment of Trustees Act. They are not strictly bound by the legal rights of the parties but can make decisions based on fairness and practical outcomes.

Kingsley v Kingsley (2019)

This case involved a dispute over a family farm following the death of one sibling who had been in partnership with their sister. The deceased’s share passed to his widow, who wanted to sell the farm, but the sister wanted to continue running it.

The court ruled that the sister should be given a limited period to buy out the widow’s interest in the property. It recognised the purpose of the trust had been to run the farm as a family business and that the widow’s interest was purely financial.

The decision followed the same reasoning as in the earlier Bagum case, showing how the courts can balance the need to respect financial interests while preserving longstanding family arrangements.

How Wilson Law can help

At Wilson Law, we specialise in all matters relating to property law and property litigation. We regularly advise clients on complex co-ownership disputes and applications under the Trusts of Land and Appointment of Trustees Act 1996.

With decades of experience working across East Molesey, Esher, Weybridge, Walton on Thames, Hersham, Twickenham, Teddington, Richmond, Thames Ditton and Claygate, our team combines technical legal knowledge with a deep understanding of local property matters.

We will:

• Assess your rights and position based on legal ownership and contributions
• Advise on your options, including negotiation and mediation
• Handle all correspondence and negotiations with co-owners
• Prepare and issue court applications if required
• Guide you through the process with clarity and care

To discuss a property dispute or possible TOLATA claim, contact Wilson Law today for expert advice tailored to your situation.