A TOLATA (Trusts of Land and Appointment of Trustees Act 1996) claim can be a complex process. The best method for avoiding a TOLATA claim is to prevent one arising in the first place by taking pre-emptive measures with any cohabitees. A written agreement between the parties can save a wealth of time and expense on protracted court proceedings.
TOLATA claims typically involve parties who have an interest in a property but are seeking to resolve disputes over ownership, occupation, or sale. Here are some potential points to consider when dealing with a TOLATA claim:
Consider the Terms of Ownership or the Trust Document
- Details of how the property is owned: The title documents to the property may reveal how the property was intended to be owned between co-owners. Considering the title is a good starting point, as they may reveal any registered agreements against the title. .
- Formalities of the Document: If the property is owned pursuant to a trust this may govern how the beneficiaries are to deal with the property that is subject to the trust. Consideration of what is detailed within the document isa key starting point as to what can be done with the property.
Beneficiaries or Shares in the Property
- Beneficial Interest: If the share in the property is not formally recorded in a document and/or trust, then consideration may be needed as to the division of beneficial ownership in the property. This is often relevant in cases where a property is owned jointly, but the parties disagree on how the beneficial ownership is divided.
- Intention of the Parties: The parties’ intentions as to how the property was to be held will be a key consideration where there is an absence of a written agreement in relation to the property. This could involve consideration of how the parties behaved when purchasing the property.
Ownership and Financial Contributions
- Contributions to the Property: Parties may wish to consider how they contributed to the property financially, for instance through the mortgage or upkeep of the property. This may have an impact on the outcome of the dispute.
- Non-financial Contributions: In some cases, non-financial contributions such as homemaking, caregiving, or other forms of input can be considered. Evidence of such contributions need to be properly set out with relevant details such as what was done and on what dates.
Evidence Gathering
When preparing a claim under TOLATA, it is crucial to gather the following types of evidence. While this is a non-exhaustive list, these documents may assist:
- Financial records: Bank statements, mortgage payments, the mortgage offer, correspondence with a broker, receipts showing contributions to the property.
- Written communications: Emails, letters, messages, or documents that may indicate the intentions of the parties regarding ownership.
- Witnesses: Statements from family members, friends, or professionals who can testify to the agreements or conduct of the parties.
- Legal documentation: Any formal agreements, such as deeds, declarations of trust, or contracts.
Conclusion
The outcome of a TOLATA claim will depend on the specifics of the case and the evidence available. Whether it concerns the sale of the property or establishing how the property is held, it is essential to understand the legal context of the claim and gather compelling evidence. Consulting a solicitor with experience in TOLATA is strongly advised to ensure you are following the correct legal procedures and presenting the strongest possible case.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
