When cohabiting couples separate, they often want to know what the process is for dealing with the property.
The Trusts of Land and Appointment of Trustees Act 1996 (ToLATA) gives the court certain powers to resolve disputes about the ownership of land.
There are two main types of applications that can be made under ToLATA to resolve disputes about co-owned land. These are:
These applications permit a court to decide who are the legal and beneficial owners of a property and in what proportions.
I will run through the procedure and the legal framework involved in making an application.
There are alternatives to court proceedings. The person considering making the claim should always consider alternative ways to settle the dispute.
Any mechanism for resolving disputes outside of the court is called Alternative Dispute Resolution. The two most common are mediation and negotiation.
ADR is not compulsory, but it is encouraged. The court could impose penalties if ADR has not been attempted and the most common penalty is in relation to the costs of the proceedings.
Any person wishing to begin court proceedings is required to send a letter to the other party setting out the basis of the dispute and what they propose to ask the court to do. This is known as a pre-action letter or a letter before action.
The letter should also identify any documents on which the claimant wishes to rely upon to support their claim. The letter should be sent to all co-owners (whether legal or beneficial) of the land in dispute.
The defendant should respond to the letter within a reasonable period of time. The response should indicate whether the proposed claim is accepted or disputed. If disputed, the reasons for that should be provided. Any documents relied upon by the defendant should likewise be identified.
The claimant and defendant are entitled to involve an expert to help them negotiate a compromise. The expert can provide an opinion to help resolve the whole claim, or part of it. Valuers and surveyors in these matters will generally assist to put a value on the land in question.
If it has not been possible to resolve a claim the claimant will have to start court proceedings against the defendant.
The Civil Procedure Rules identify two main types of claim that a claimant can start. The first is more appropriate where there are disputes of fact between the parties. This is called a Part 7 claim. The second is more appropriate where there is no significant dispute about the facts, but where there is a disagreement about the legal principles that apply. This is called a Part 8 claim.
The application that starts the court process is called a Claim Form.
A claimant must summarise in the Claim Form:
There is a fee payable on the Claim Form depending upon the value of the claim.
Under Part 8, at the same time as filing the Claim Form with the court, the claimant should also provide the evidence in writing he or she intends to rely upon.
The Claim Form is issued by the court and then served on each of the defendants.
How a defendant responds depends upon whether Part 7 or Part 8 has been used by the claimant.
Under Part 7, each defendant has 14 days after receipt to acknowledge the claim. In the acknowledgment the defendant may concede or dispute the matter.
Any defence and counterclaim must be sent to the claim and filed at the court within 28 days of receiving the Claim Form.
Under Part 8, the same general principles apply, but the procedure is slightly different. The defendant does not have to file a defence. Instead, the defendant must file an acknowledgment within 14 days of receiving the Claim Form. The acknowledgment must be sent to the claimant and filed at court. It must say whether the claim is disputed. If the claim is disputed, the acknowledgment must be accompanied by any evidence in writing the defendant intends to rely upon.
If the defendant fails to respond to the Claim Form in time, the claimant may be able to ask the court to grant the claim.
A Part 36 offer can be made by either party to compromise the claim. Offers using this mechanism must be in writing and remain open for acceptance for at least 21 days. A Part 36 offer will only be shown to the Judge when it comes to arguments about costs.
Calderbank offers are another mechanism whereby either party can make an offer to settle.
There are a number of other procedures that we can guide you through in the event the matter is heard by the court.
However, the final stage is the trial, where the documents and evidence will be heard alongside the legal arguments. The Judge will then make their decision (the judgment). The Judgment can be given straight away or at a later date.
Myerson’s Property Litigation team are experts in cohabitation rights and property ownership disputes. We have a wide range of experience in these cases and can help you to understand your options and guide you through the process, so please get in touch.
