Property Ownership Disputes

If there is no express declaration of trust outlining who has a beneficial interest in the property and in what shares, there are other ways of establishing property rights.

Resulting Trusts

The first category relates to resulting trusts, which are typically based on the contributions made by the joint property owners towards the property's purchase price unless the contribution was explicitly given as a gift.

Constructive Trusts

The second category, constructive trusts, is centred around the understanding that the joint owner will derive some benefit from a shared ownership structure.

It is important to note that a constructive trust specifically addresses shared ownership rather than mere occupancy of the joint property and typically requires a pre-existing agreement before the property is acquired.

In the event of a TOLATA claim, judges adopt a comprehensive approach to determine each party's share in the property. They may consider both resulting trusts and constructive trusts when making their assessments.

The Court can decide who is entitled to occupy the property, how the property is held (in what shares) and whether there should be a sale of the property.

Whether you are initiating or defending a TOLATA claim, seeking the guidance of a legal expert is crucial.

Such experts can clarify what you need to demonstrate to satisfy a Judge you have a claim, enabling you to present a robust case and prepare for any cross-examination that may arise during the legal proceedings.

Under Section 14 of the Trusts of Land and Appointment of Trustees Act (TOLATA):

"Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court for an order under this section."

The above means that if you have shared property with someone or have a financial or beneficial interest in it, you have the legal recourse to seek the court's intervention to resolve disputes related to joint property ownership.

When pursuing a TOLATA claim, it is crucial to provide a detailed account of the actions you took that entitle you to a share in the property. This may include demonstrating your financial contributions towards acquiring or maintaining the property.

If you can substantiate that there was a mutual intention to share the property, either explicitly discussed or implied, between you and your cohabiting partner, this strengthens your ownership dispute case.

Additionally, if you can prove that you relied on these intentions to your detriment (e.g., by giving up your own property to move into the shared property in question), it may further bolsters your position in court.

The most effective defence against a TOLATA claim is to proactively prevent one from arising in the first place by taking precautionary steps when cohabiting with others. This should be done at the outset when the property is purchased, or you move in together.

1. Clarify Intentions: Ensure that your intentions for your property are clear and consistent from the outset, ideally documented in writing before you commence cohabitation. This can help mitigate misunderstandings or disputes regarding property ownership down the line.
2. Financial Records: Keep meticulous records of any financial contributions made by other parties towards your property. Note whether these contributions were intended as gifts or were part of a transactional arrangement. Having a clear financial trail can be invaluable in case a dispute arises.
3. Property Documentation: Maintain an up-to-date and accurate record of all property-related details. This includes property deeds, agreements, and any changes in ownership status. Having well-organised and comprehensive documentation can significantly bolster your defence if you find yourself in the unfortunate position of having to go to court.

By taking these proactive measures, you can minimise the risk of facing a TOLATA claim, and in the event of one arising, you will be better prepared to present a strong case in your favour should it become necessary to engage in legal proceedings.

Many individuals enter into a new relationship and agree to purchase a home together.

For many couples, one individual may contribute a significantly larger amount of money to the home and not protect their position in the event the relationship breaks down.

We are increasingly seeing several cases where one party has sold a previous property and invested a large sum of money into the new property.

Unfortunately, advice was not given about the implications of doing this.

In one case, a client purchased a property first in her sole name. She had invested a large sum of money from the sale of a previous property into the new property. Her partner moved into the property at the time.

As the client was the sole owner of the property, she paid the mortgage and other expenses relating to the property solely.

A few years later, the client re-mortgaged the property, and at that time, she agreed to add her partner as a joint owner to the property. The legal title to the property was held in joint names as joint tenants.

The partner was also a party to the mortgage. Despite the partner being named on the property, our client still made the mortgage payments and paid the other expenses relating to the property.

The partner made minimal payments to the running of the household.

The relationship between the parties eventually broke down, and our client came to us to try to resolve the matter. Our client wanted to stay at the property and for the partner to be bought out for a limited sum on the basis that our client had invested a large sum of money into the property and the other party had failed to contribute throughout the joint ownership.

The law in this area is clear unless the presumption can be disputed.

In this case, our client held the property jointly with her ex-partner as joint tenants. Where a property is held as joint tenants, the Court will assume that the beneficial interest in the property is held 50:50. In most cases, the Declaration of Trust set out in the transfer agreement will be determinative of the parties’ beneficial interest in the property.

In this case, we were able to agree on a settlement with the ex-partner whereby he was paid a lump sum for him to transfer his legal and beneficial interest in the property to our client.

However, this problem is not unique, and it highlights that parties should obtain independent legal advice when purchasing a property with a partner and whether a separate declaration of trust should be drawn up.

When owning a property with a partner, things are not always equal, as one partner may earn more than another or put more money into the property through a large deposit when the property is being purchased.

In cases such as the above, clients do not always consider how to protect their investment should the couple split.

In a recent case that we advised on, the client informed us that she had sold her previous property, which was unmortgaged and therefore had a large amount of equity to invest in the new property with her partner. 

Sadly, the client has now split with her partner, and they cannot agree that she is entitled to the sum of money she put into the property at the time of purchase.

Unfortunately, this client was not advised by her solicitor at the time of purchase to enter into a separate declaration of trust that set out the sums the parties would obtain in the event the couple split or the property was sold.  

In this case, the parties held the property jointly and therefore, the court would assume that the beneficial interest is held 50:50. This is because the transfer document signed by the parties automatically includes a declaration of trust.

This declaration, in the vast majority of cases, is determinative of the parties’ beneficial interest in the property.

The lack of a separate declaration of trust would, therefore, mean that the client has no entitlement to the funds that were initially used to fund the purchase of the property, and the only way the client can proceed is to try and reach an agreement with the ex-partner.

In some cases, clients purchase property in one person’s name.

Another partner may move in, or there may be another reason why the property was placed in one individual’s name only.

In a recent case we have dealt with, our client purchased a property with her ex-partner.

We understood the reason for this was due to the partner not being able to obtain a mortgage.

The partner did not come to any of the meetings with the solicitor or the mortgage company during the time of the purchase.

During the relationship, the ex-partner carried out extensive renovation to the property, including developing an outbuilding to provide further accommodation.

The ex-partner claimed that he had an interest in the property by way of a constructive trust due to the work he had completed.

However, the ex-partner claimed that he had a greater beneficial interest in the property than our client and would not split the property equally.

Our client disputed the ex-partner’s position, and in the end, we were able to settle the matter, setting out that each party had an equal beneficial interest in the property.  

This case shows that where works are to be completed on a property, it is advisable that the parties enter into a declaration to show each parties’ entitlement should the parties separate or should the property be sold.

Various property trusts exist, including express, implied, resulting, and constructive trusts.

In a trust arrangement, one party, the trustor, holds and manages the property on behalf of other trustees.

Under the Trusts of Land and Appointment of Trustees Act (TOLATA), the court has the authority to establish trusts, such as constructive trusts. This occurs in situations where no prior declaration of trust exists.

Under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), the following individuals or parties can apply to the court:

1. Trustees: Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court for an order under TOLATA. Trustees typically include those who hold legal title to the property.
2. Beneficial Owners: Beneficial owners or individuals with an equitable interest in the property can also apply under TOLATA. These are individuals who may not hold legal title to the property but have a beneficial interest in it, such as individuals who have contributed financially to the property's acquisition or maintenance.
3. Co-Owners: Co-owners of a property, whether they hold the property as joint tenants or tenants in common, can make TOLATA applications. TOLATA can be used to resolve disputes or determine the extent of each co-owner's interest in the property.
4. Parties with a Right of Occupation: Individuals who have a right to occupy a property, even if they do not hold legal title, may apply under TOLATA to assert their rights, or resolve property disputes regarding their right to occupy the property.

It's important to note that TOLATA provides a legal framework for resolving disputes related to property ownership and trusts.

The specific circumstances of each case and the parties involved will determine the nature of the application and the dispute resolution sought under TOLATA.

TOLATA claims are legal actions aimed at resolving disputes over the ownership of land held in trust, whether through joint ownership or sole ownership arrangements.

These claims are typically filed in either a County Court or the High Court, and they follow the established Civil Procedure Rules (CPR) governing court proceedings.

In many cases, seeking a mutually agreeable resolution through dispute resolution methods is advisable rather than letting a TOLATA claim progress through the court system.

Such alternative dispute resolution approaches can save both parties valuable time and financial resources while alleviating the added stress often associated with legal proceedings during what is already a challenging period.

A straightforward property dispute can often be resolved through mutual agreement within a few weeks.

However, in property disputes that escalate to court proceedings, the duration for resolution can vary significantly, spanning from approximately three months to well over a year.

The specific timeframe hinges on the intricacy and complexity of the case.

When joint property owners face a deadlock, with one party eager to sell while the other resists, the co-owner seeking to sell can seek a resolution through the courts by applying for an Order for Sale.

This legal remedy falls under the Trusts of Land and Appointment of Trustees Act.