TOLATA Proceedings

    Trusts of Land and Appointment of Trustees Act 1996

    If you separate from your partner and you are not married then an application under the Trusts of Land and Appointment of Trustees Act 1996 may be required. These are civil not family law proceedings,.

    The Trusts of Land and Appointment of Trustees Act 1996 is an important piece of legislation for unmarried couples and other people who jointly own property together or who live together. This includes for example gay couples that have not entered into a civil partnership and relatives that live together, for example, siblings that live together.

    Where the property is held in joint names the law presumes that it is held equally (i.e. 50/50 where there are 2 owners). Sometimes, for an array of different reasons, the property is held in one person’s name only. However, it is possible for someone else to also have an interest in the property.

    TOLATA is the principle remedy for relief and section 14 of the act should be made where there is a dispute over whether the jointly owned property should be sold and to determine the respective beneficial share of each owner. The act can also be used where a party claims to be a beneficial owner of the property and the other owner is either denying the claim or the amount claimed.

    It is important to note that TOLATA applications are not limited to cohabitees. Married couples can apply under this piece of legislation, although they are encouraged to apply under the Matrimonial Causes Act to deal with their finances rather than TOLATA.

    In deciding what order should be made, the court will look at:

    • the intention of the person who created the trust
    • the purposes for which the property subject to the trust is held
    • the welfare of any children who live in the property or might reasonably be expected to live in the property subject to the trust as their home
    • the interests of any secured creditor

    When the position is set out in writing, the outcome is usually easy to determine, however where there is no written agreement or record and one of the parties claims a substantial and significant contribution to the purchase, upkeep or improvement of the property, then the Court can determine the shares held by each party.

    The procedure in a TOLATA application is often complex and there are very strict rules which the parties must adhere to in the process. A failure to follow the rules may result in very serious sanctions and costs consequences.

    Call Castelo Solicitors on 020 3441 5095 to discuss your TOLATA issue in more detail


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