TOLATA and Cohabitation Reform: What Could Change for Unmarried Couples?

In circumstances where there are no express declarations of trust which set out the beneficial interests in the property and the relevant shares, the court has the power to establish property rights through trusts, such as resulting trusts and constructive trusts, under the TOLATA legal framework.  

However, it is typical where parties jointly own the property as joint tenants that the court’s starting point will be that the parties co-own the property 50:50.  

There are ways where the court can, however, determine that the shares differ, which we set out below:

• Resulting Trusts: Resulting trusts 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.  This is more applicable in a business context.
• Constructive Trusts: Constructive trusts relate to a common understanding that a joint owner has shared ownership of the property rather than mere occupancy. 

TOLATA is applicable to a variety of situations involving joint ownership, including: 

• Moving in with a new partner: For example, whether contributions to mortgage payments or substantial household expenditure amount to a beneficial interest within the property;
• Where one party has carried out substantial work on a property that they do not legally own: This could involve one party funding a significant extension, refurbishment or structural improvement work. Whilst such expenditure does not automatically create a beneficial interest, it may provide evidence of a common intention that ownership would be shared; and
• Inherited property: Disputes can arise where multiple beneficiaries inherit a property jointly but cannot agree on matters such as occupation rights, between themselves

When bringing a TOLATA claim, it is essential to provide a clear and detailed explanation of the circumstances that give rise to your claimed interest in the property.

This will often involve demonstrating your financial contributions towards acquiring or maintaining the property, as well as any other evidence that supports your claim that you should be entitled to a share of the property, including evidence that you acted to your detriment in reliance on a mutual intention to share the property.

However, given the time, financial, and emotional cost of pursuing a TOLATA claim in the County Court or High Court, it is often advisable to seek a resolution through alternative dispute resolution routes rather than progressing a claim to trial.  

Such alternative dispute resolution is often achieved through mediation which can lead to a mutually acceptable outcome.