TOLATA Claim Guide for Unmarried Couples

Under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), the courts have the power to decide who owns a property, what share each person holds, and what should happen to the property when the couple separates. As such, TOLATA gives the civil courts the ability to resolve property disputes involving land and property. TOLATA claims tend to arise where an unmarried couple live together, but only one partner is the legal owner of the home. As unmarried couples do not have the same property rights as married couples, one partner may have no automatic claim even if they paid towards the deposit, mortgage, or any renovation work. A TOLATA claim can help an unmarried partner: 

• Clarify their beneficial share in a property in which they live with their unmarried partner
• Recover financial contributions made towards the home
• Establish a right to live in the property
• Secure an order for the sale of the property if the other owner will not agree, and
• Assert their rights if their name is not on the title deeds of the property

It is important to understand that TOLATA claims are made in the civil court, not the family court. This is because property rights under the Matrimonial Causes Act 1973 apply only to married couples and civil partners. However, unmarried couples can still make separate applications through the family court if needed, such as: 

• An ‘Occupation Order’ to decide who can live in or enter the home 
• A ‘Schedule 1 Children Act’ claim for housing or financial provision for a child 

What is the process of making a TOLATA claim?

A TOLATA claim can be made at any time once a dispute arises. Parties involved in a TOLATA claim are encouraged to follow the Civil Procedure Rules (CPR) Pre-Action Protocol before starting proceedings. The CPR Pre-Action Protocol is a set of steps that parties in a TOLATA claim should follow before starting court proceedings, to exchange information, clarify the issues and try to settle the dispute without litigation. 

TOLATA cases typically take between 6 and 18 months, depending on the complexity of ownership, the level of evidence, the willingness of the parties to cooperate, and whether the parties are able to reach a settlement before the final hearing. 

Making a TOLATA claim involves the following key steps: 

• Completing the pre-action protocol checklist (pre-court)
• Preparing and issuing a TOLATA claim
• Court case management, hearing and judgment

Completing the pre-action protocol checklist

Before starting a court claim, the following steps should be completed in line with the CPR pre-action protocol checklist: 

• Send a ‘Letter Before Claim’ to the other party setting out the basis of the dispute, each party’s contributions and the outcome you are seeking, e.g. a share of the equity, a sale of the property or a right to live in the home
• The defendant will need to respond within 14 days or up to 3 months if the matter is complex, stating whether the claim is accepted. If not, they must set out the reasons, identify the disputed facts or issues, and state whether a counterclaim is being made, with brief details
• Exchange documents and evidence, including bank statements, mortgage statements, transfer forms, and any communications (e.g. emails and messages) showing agreement about ownership or financial contributions, and
• Use non-court dispute resolution (NCDR) methods such as mediation to resolve the matter without going to court. Mediation is also strongly encouraged under the Practice Direction on Pre-Action Conduct.

If no agreement is reached, the claim can move to court. 

Preparing and issuing the TOLATA claim

To bring a TOLATA claim, you or your Solicitor will need to: 

1. Complete and submit a Claim Form (Form N1) to the court.
2. Set out your legal interest in the land or property, your beneficial interest (what share or right you say you have), and the basis for that interest (contributions, agreement, conduct, etc). This last point is especially important in a TOLATA claim, where co-ownership or equitable interests are disputed.)
3. Once the form is issued by the court, you must serve it on the defendant. Service must be done within 4 months if served within England & Wales. The defendant then has a period (normally 14 days from service) to respond (or longer if the case is complex).

If the other party files a defence, your claim will progress to the case management stage. 

Court case management, hearing and judgment

Once the claim is issued, the court will manage your case. The court may order: 

• Disclosure of documents
• Production of witness statements
• Expert evidence, for example, property valuations
• A timetable for submissions and hearings, and
• Further attempts at settlement, such as mediation

If your dispute cannot be resolved, it will proceed to a final hearing at which the judge will consider the evidence and decide who owns the property, what share each person holds, whether the property should be sold, how the needs of any children will be met, and who has the right to live in the home. Once the court makes an order, it is binding and can be enforced like any other civil judgment. 

What orders can the court make under TOLATA?

The court has the legal power under the TOLATA Act to make a number of types of orders, including: 

• A declaration of each party’s beneficial interest in the property
• An order for the sale of the property
• An order controlling how the sale takes place, including timing and price
• An order giving one party the right to occupy the property
• An order restricting or regulating access to the home, and
• An order for financial adjustments, such as repayment of contributions

The courts have the power to issue a wide range of order types depending on the circumstances of the case. 

What factors does the court consider in a TOLATA claim? 

Section 15 of the TOLATA Act 1996 sets out the key matters the court must consider, including:

• The intentions of the parties
• Why the property was purchased (e.g. as a family home)
• The welfare of any children who live in the property
• The interests of any lenders (e.g. mortgage providers)
• The conduct and contributions of each party, including payments towards deposit, mortgage or renovation, and
• Any agreements or assurances between the couple about ownership

The court will consider all evidence and then reach a fair decision based on the legal principles of trusts and beneficial ownership. 

FAQs about TOLATA claims