Understanding Trust of Land (TOLATA) disputes

Tallents Solicitors explain TOLATA disputes
December 23, 2022
Dispute resolution Family law Property law

What is a TOLATA dispute?

A Trust of Land (TOLATA) dispute sometimes occurs when a relationship breaks down between a couple who are not in a marriage or civil partnership, and there is a dispute about the property that they occupied together.

The dispute might relate to whether there should be a sale of the property, who should occupy it or who is entitled to what share in the property.  These issues can be determined by a court pursuant to the Trusts of Land and Appointment of Trustees Act 1996 (the Act).

Stephanie Whitchurch is a partner at Tallents Solicitors

Stephanie Whitchurch

In this article, Stephanie Whitchurch, Partner and Head of Litigation from Tallents Solicitors focuses on disputes over shares in a property.

Sometimes, a property has been purchased in the sole name of one party, but the other party wants to assert an interest in it.  Sometimes a property is legally in joint names but there is a dispute as to the respective shares of the parties in the property.

The starting point will always be to look at who is legally named as the owner of the property. It should then be considered whether there has been any formal, written, express declaration of trust. Declarations of trust are sometimes prepared when parties purchase a property and set out the beneficial interests of the parties.

Often, the court is asked to consider whether there is any resulting or constructive trust.

Resulting Trust

This might occur when one party has made a direct financial contribution to the purchase price of the property to the person who holds the paper title. It must be clear that the contribution to the purchase was not a gift or loan (such as a Gifted Deposit). Such a contribution can create a rebuttable presumption that it was the intention of the parties to hold their beneficial interests in the property in proportion to their contributions.  However, much will depend on the specific circumstances of the case.

Constructive Trust

This occurs when there is an agreement, arrangement or understanding which amounts to a common intention that the beneficial ownership of the property should be shared and the person asserting the interest has acted to their detriment in the belief that they were acquiring a beneficial interest.

Typically, the detriment will be a contribution to mortgage payments or works on the property.

Cases relating to constructive trusts often involve an analysis of verbal discussions that took place between the parties.

Sometimes, as an alternative argument to a constructive trust, a party asserts that the doctrine of proprietary estoppel applies, in circumstances where a promise was made by one party promises or encourages the other to believe that they will have a right to a property; it is relied upon by the other party to their detriment; and the promising party then seeks to deny the right that was promised. In those circumstances, the argument is that the promising party should be “estopped” from going back on their promise.

Think you may have Trust of Land (TOLATA) dispute?

Clearly this is a complex area of property law, often further complicated by the high emotions surrounding a relationship breakdown. However, it is important that each party receives their fair share if they have contributed significantly to a property now being disputed.

Initially, we recommend you speak to one of our experienced Family Law solicitors who can then refer to you our Dispute Resolution team if necessary. Call us on 01636 671881 to speak to an experienced team member in confidence.

Alternatively, Tallents Solicitors offers a free, phone-in Family Law clinic on Tuesday evenings, 5-7pm. Just call 01636 813411 to speak to one of our solicitors.

dispute over property proprietary estoppel TOLATA TOLATA dispute Trust of Land Trust of Land dispute
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