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Trusts of Land (ToLATA)

The following is a guide to bringing a claim for an interest in a house, for example to determine the shares in which it is owned. This is a complicated area of law and you will need advice from a solicitor in order to decide whether or not to proceed. And then, to prepare the case for you, so if you need some advice, don’t hesitate to contact me

What are your first steps? 

The first thing to do is establish what legal rights or title each party has in the property. There are 2 sets of rights regarding land, the legal title and the beneficial estate. The legal title is usually what is registered with the Land Registry. The beneficial title is what people are entitled to out of that legal title. Beneficial rights can sometimes be acquired irrespective of whether a legal title has ever been registered in a person's name.

The starting point for determining a person's interest in land is any separate declaration or the declaration of trust at panel 10 in the TR1 or TP1 transfer deed which sets this out. A copy of the transfer deed should be with the Land Registry. Otherwise the beneficial shares maybe set out in in a separate declaration of trust entered into between parties or in a financial consent order or some other financial order sealed by the Family Court or even in a will. There are strict requirements to comply with for this to be valid and binding. If you do not have a copy of the title register documents we can obtain these for you for £6.

Where there is no express declaration of trust or provision for this in the transfer deed when you bought the house (and this is unusual), the matter falls to be dealt with under the old law of trusts. Where a party contributes to the purchase price of property a  'resulting trust' may arise. Where there is a common intention for a party to have an interest in the property, a 'constructive trust' may arise. If one party promises to the other that they will have a share in the property and they act in reliance on this, issues of estoppel may arise. All of the above can be used to help establish the proportionate ‘interest’ in a property. As such it is vital to provide as much evidence as possible, i.e. financial payments towards the mortgage or any improvements to the property. Plus evidence to show how you might have been put at a disadvantage or have altered your position because of an agreement between you and the other party.

2

Advice from a solicitor

If after all this, you decide to pursue your ToLATA claim, I would strongly advise you to speak to a solicitor, as ensuring you have a good case and there are no weaknesses could save you a great deal of time and money later on. ToLATA claims can be expensive to bring and the costs are frontloaded. It is important that you know you have a good prospect that you will win before starting any proceedings. As unlike proceedings in the Family Court, costs follow the event in a ToLATA case. This means that if you lose you will have to pay a proportion of the winning party's costs.

3

Mediation

Once you have done all the above I would usually advise you to try to Negotiate a settlement via solicitors or by discussions between you. If this does not work you should then try mediation. Because the court will expect you have totry to solve your disputes via this process first, (though it is not a legal requirement for ToLATA cases unlike family law matters). Once in Court, the Judge will make the decision based on the evidence  and that takes away control from you completely. However, Mediation does not work for everyone and It doesn't work where one side is abusive, manipulative or engages in controlling and coercive behaviour so if it isn’t right for you, Court is your only option.

4

ToLATA Court Proceedings Outline

If you need to issue proceedings to ask the court to sell the house or to determine the shares that you own it, you would take the following steps.

  1. Instruct a Solicitor to prepare the claim form, because a ToLATA claim is too complicated to bring by yourself

  2. Your solicitor will apply to the Court for your case to be heard by submitting a N208 claim form with a detailed written statement in support of the claim and exhibiting the relevant documents.

  3. Give details for the defendants in the case who are any other owner or other person with an interest in the property such as a mortgage lender. Each of these people must be served with the proceedings.

  4. ​Pay the court fee, Presently £322 on issuing a ToLATA claim, if there is no additional claim for money and you are issuing in the County Court, not the High Court.

  5. Upon service, the defendants must file an Acknowledgment of Service Form N210 form and their written evidence within 14 days. In practice they will require, and you should give an extension of time for this.

  6. Once their Acknowledgment of Service Form is filed, the Court should fix a hearing for directions. Though don't be surprised if you have to remind the court to do this.

  7. At the Directions Hearing, the District Judge will consider what additional Orders  need to be made such as the requirement for each party to disclose to the other party all relevant information and documentation relating to the case, for the filing of further evidence such as any additional witness statements and the future conduct of the case, as well as fixing the timetable for the final hearing.

  8. The case will then be adjourned for the final preparation of the case and the listing for a final hearing. The final hearing will not be for some months after the Directions Hearing.

Get in Touch

Laurence Holmes Solicitors, Elms Farm, Stock Lane, Brinsea, Congresbury, Bristol BS49 5JL

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