Can I Make A Claim Against A Property When We Are Not Married?

When a dispute arises about property ownership after separation from a partner you have cohabited with, it is important to consider your rights. You may have a claim under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”). This law gives the Court powers to resolve disputes between unmarried cohabitants in the event of their separation.

It is a common misconception that cohabitants have the same rights as married couples and civil partners do upon divorce or dissolution – but they don’t. Disputes between cohabitants are determined by the rules of Trusts Law instead, which entails a different process with different rules applying.

Applications under TOLATA commonly arise between former cohabitants where there one party claims more than a 50% share and there is no express declaration of trust – a document which sets out how the shares of the property are to be held – .

Who can apply?

You may be entitled to make a TOLATA application if you have a financial interest in a property or have previously cohabitated in a property. A financial interest can also be established if you can demonstrate actions such as financial contributions to the purchase or evidence of maintenance that entitles you to a stake in the property.

In summary, you may be able to make an application if you are a trustee of land or have an interest in property subject to a trust of land.

What is a trust of land?

A trust of land arises when one party, the trustee, holds the title to land or property for the benefit of another party, the beneficiary. The latter is therefore said to have a beneficial interest in the property.
Trusts of land can be one of the following:

• express (intentionally created e.g. in a written document such as a declaration of trust or a will);
• implied (imposed by law, this is not created directly by the settlor but by implication)
• resulting (presumed e.g. where there is a voluntary transfer of property to another or the title is put into the name of someone other than the person who provided the purchase money); and
• constructive (where a person with an asset cannot deny the beneficial interest of another person in the asset).

An example of a resulting trust is where the title to a property, or another asset such as a bank account, is held in the name of X but the true owner of all or part of it is Y due to the contributions that Y has made to the purchase of it. In this case, X Is the notional trustee and Y is the beneficiary.
An example of a constructive trust is where X owns a property in their sole name and Y contributes to the mortgage repayments or pays for substantial improvements to the property, the court may infer a common intention between the parties to share the property because Y has acted to their detriment in providing such monetary contributions.

What factors does the Court consider with TOLATA claims?

When considering a claim under TOLATA, the Court takes will take into consideration the following factors:

1. Any intentions that might appear to be for ownership, for instance who was responsible for payment of the mortgage, household bills and other outgoings;
2. The reasons for the purchase of the property, for example was it intended to be a family home?
3. Are there any written agreements or declarations of trusts?
4. Did a party make significant financial contributions, such as to the purchase of the property or to any renovations?
5. The welfare of any children under the age of 18 who occupy or might reasonably be expected to live at the property as their home; and
6. The interests of any secured creditor, such as a mortgage lender.

All these factors have equal weight and the Court may even consider other factors that it finds to be relevant.

What is the process of a TOLATA claim?

1. Pre-action steps

This involves serving the other party with a Letter before Action. This sets out your claim and is normally very detailed. The defendant, who is the party served with the letter, will then respond. Exchange of disclosure might be carried out to present documents or information that might support the parties’ cases. Pre-action protocol also requires the parties to consider engaging in alternative dispute resolution methods which may avoid a Court application.

2. Court application

A formal application via a claim form is then lodged with Court and the claim will be issued in the appropriate Court. The claim form will need to outline the nature of the dispute, the relevant background, the legal basis for the claim and the order sought. This form is then served on all other parties in the dispute. The defendant will then need to respond to the claim. If they accept the claim, negotiations can be undertaken without proceeding to Court.

3. Proceedings

If the claim is disputed, the Court will then issue a timetable for proceedings. This includes deadlines for exchanging evidence, instructing any experts and setting any fixed dates for hearings. At Court, both parties will present their evidence and arguments. The judgment will then determine the parties’ rights and will include any orders made.

What might the Court order when dealing with a TOLATA claim?

The Court may exercise their power to make decisions to:

• Determine a person’s interest or share in the property;
• Order the property to be sold;
• Determine if parents or grandparents should recover their financial interest in a property, for instance if they contributed to the purchase;
• Determine who can occupy the property; and
• Order a party to pay rent for occupying the property.

It is vital to understand your position when facing a property dispute as a separating, unmarried couple.

This is a complex area of family law and our approachable and experienced family law team can provide specialist advice on the best approach for your situation. For more information please get in touch with our family law experts on 0330 822 3451 or request a callback.