ToLATA - For unmarried couples who are separating
What happens when a couple who are not married but own a property together decide that they need to separate?
Legislation that governs this situation is completely unrelated to the Family Law legislation, Matrimonial Causes Act 1973. As such the situation is usually dealt with by Dispute Resolution, as it essentially is a dispute over property ownership, whether going to court is required or not.
The Trusts of Land and Appointment of Trustees Act 1996 (known as TOLATA) gives Courts certain powers to resolve disputes about the ownership of property (or land).
A ToLATA claim can be issued:
i) To force the sale of land or property.
ii) To reoccupy a former family home when an ex-partner refuses to leave.
iii) By parents/grandparents wanting to recover their financial interest in the property.
iv) To determine the share you each own.
v) Who occupies and who owns the property.
There are three main types of application that can be made under ToLATA to resolve disputes about land.
i) To order a sale of the property, enabling an owner to realise their financial interest,
ii) to decide who is entitled to occupy, and
ii) to decide the nature and extent of the ownership of a property owned by two or more people.
Taken together, these applications permit a court to decide who are the legal and beneficial owners of a property, and in what proportions.
There are other powers in ToLATA that allow a court to direct the owner of land to behave in a certain way.
In disputes about co-ownership, these powers are used most frequently to require a co-owned property to be sold so that the proceeds can be divided.
ToLATA limits a court to deciding on co-ownership of property. It does not give the court the power to vary that co-ownership, and adjust the proportions that each person owns.
Alternative to court
Frequently, mediation and negotiation is used to resolve the issues without involving the courts.
This is not compulsory, but it is positively encouraged and if you end up in court the Judge will be keen to see if other methods of resolution have been tried and can even impose penalties relating to the costs of the proceedings.
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