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TOLATA: Nothing to do With Dancing, Everything to Do with Property and Unmarried Couples

We know, we know, it sounds like some kind of complicated Mediterranean dance, but in reality, TOLATA is nothing of the sort. It’s actually just a rather jaunty acronym for the Trusts of Land and Appointees of Trustees Act. But wait! Don’t hit the back button just yet! We promise to go back to calling it TOLATA and to steer well clear of legal speak.

TOLATA has very little to do with dancing, and a lot to do with property disputes and unmarried couples. Now, we appreciate that doesn’t necessarily make a huge amount of sense that a bit of paper, a fancy dress/suit and a sit down meal for a hundred people significantly changes the way your relationship is seen in the eyes of the law… but it does.

Like it or not, if you’re thinking about moving in with someone you’re totes-in-love with, whether you’re married or in a civil partnership makes a big difference to the rights you’d have over your home should you find yourselves in splitsville. And yes, we know you won’t want to think about that when you’re deep in the hearts and flowers stage, but indulge us for a moment while we get on our legal soap box. Without a marriage/civil partnership certificate, unfortunately you would not be able to make any kind of family law claim over shared property, even after decades of cohabitation, even if you have children together, even if you found yourself out on your derriere. (And, before you say it, a ‘common law spouse’ is an urban legend about as true as the one about Bloody Mary appearing if you say her name three times in a mirror.)

So, this is where TOLATA comes in. This act gives former cohabitating partners the right to make a claim against a property in the case of a dispute. As it’s concerned with disputes between joint property owners, it can also be used in cases where friends have bought property jointly and then things have become, ahem, distinctly less friendly.

Why might you need to make a TOLATA claim?

The question of ownership is a murkier one than it sounds. Though it might seem fairly easy to tell who owns a property, a quick check with the Land Registry sadly won’t solve all issues here.

For example, what about a situation in which one joint owner of a property wants to sell it and the other doesn’t? This can happen when a relationship breaks down, either between a couple or between friends or relatives who have bought a property jointly.

Equally, what about if a couple have lived in a house together, both contributing to the cost of a mortgage and both contributing to home improvements, but only one of them is actually named on the deeds? If that couple breaks up, should the one who isn’t the official property owner be expected to forfeit their interest completely?

And we haven’t even mentioned dependents yet! What about situations where a couple split up and the subsequent argument about who gets to stay in the property centres around whether or not a child is going to be ousted from their home?

These are exactly the sort of situations where there might be a case for a TOLATA claim. The act gives the courts the power to decide things like:

  1. Who has the right to live in the property
  2. Whether or not the property should be sold
  3. How much of a stake each party has in the ownership
  4. Whether one person should pay the other compensation
  5. Whether there’s been any fraud or negligence involved

In other words, if a TOLATA claim is made, the court would be able to step in to settle any disputes about who owns what, who has the right to stay in the property, whether any funny business has taken place and whether anyone needs to be strong-armed into selling up.

Why you really, really don’t want to make a TOLATA claim

Though it’s clearly good that a legal safety net exists for people who find themselves in these sorts of disputes, trust us when we say you don’t want to be there yourself. TOLATA claims tend to be long, arduous, stressful and expensive. Even if you emerge victorious, the large legal bill and extra grey hairs you’ve racked up during the process are likely to make the whole thing feel like a rather hollow win.

Once again: most of us don’t go into a relationship planning for the end. We know this, and we’re not suggesting you should be planning your escape route before you’ve even had chance to discover each other’s bad habits. What we are suggesting is that both parties take the time to familiarise themselves with where they stand legally and what they can do to protect themselves should the yet-to-be-discovered bad habits turn out to be deal breakers.

If you and your beloved will be buying property together, or if one of you owns a place the other will be moving into, there are some important discussions to be had. It may also be wise to get some of those conversations safely recorded in writing; a solicitor will be able to advise you on cohabitation agreements and how to go about making one.

If you’re keen to protect yourself from having to make a TOLATA claim or defend yourself against one, you know where to find us. We’re always on hand to advise you on your legal situation and help you decide on the best way to plan for your future. Just don’t expect us to wow you with our dance moves… it’s a legal soap box, not a stage.

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