TOLATA Applications & Disputes Solicitors

In situations of relationship breakdown the position about property ownership between couples differs largely between:

1. couples who are in legally recognised married-type relationships, and
2. couples whose relationships were never formalised.

Couples in legally recognised married-type relationships should settle their property affairs in the legal process of dissolving their relationship, e.g. through divorce proceedings. Otherwise, if you and your ‘informal’ former partner shared property together but were never actually legally married etc. (so you can’t get legally divorced etc.) then it may be that a ‘trust’ arrangement applies to relevant property. English and Welsh law contains the jurisdiction of “Trusts of Land and Appointment of Trustees Acts” (“TOLATA”). TOLATA gives the Court power to make property decisions in disputes arising from informal partnership concerning ownership, and occupation, of property. TOLATA may give rights to people not actually named on the title to the property. The basic headline position is that the Court has a wide discretion to make whatever order the Court considers to be fair in all the circumstances, especially considering any evidence of:

• Who paid for what
• What the agreement or reasonable expectations of the parties were and/or became
• What’s fair in relation to other relevant circumstances such as dependants (children), employment, prospects, relative wealth, health, age – and all other relevant factors

Before litigating the parties should exhaust all reasonable prospects of negotiating a settlement without going to Court. The chances are that if the Court’s jurisdiction is actually invoked through litigation that the Court’s decision will be between the extremes proposed by the parties.

If parties can’t settle their dispute out of court, the process for actually making a TOLATA claim is:

• Letter Before Claim that sets out your case – ideally with evidence to support it.
• Response
• Re-consideration of informal settlement
• Filing a claim for the Court to decide

The process of investigating the prospects prior to litigation should take at least a couple of months on average.

After that, typically a trial in Manchester County Court may be listed around 6 months after the claim is filed.

Mounteney Solicitors’ willingness to act for clients in TOLATA situations will depend on our assessment of your circumstances and prospects – so please enquire if you would like to find out if we will help you with a TOLATA claim. We make no charge for reasonably considering your circumstances to the point of offering or refusing to represent you.

If we do offer to engage then it is most likely that we will offer to act on a “time-charge” basis, in which you have to pay us, regularly, at an agreed rate for the time we reasonably spend on your work. We will give as accurate estimates as we can, and a full breakdown of what we were doing for the time we do spend – however these claims are so full of contingencies and possibilities that it will be impossible for us to quote either any fixed fee, nor to offer the assurance of any ”cap” on your legal fees you will have to pay – e.g. our estimates may actually be exceeded.

As well as our costs, you will also have to pay other costs that arise from any claim you may bring, that might include Court fees, and other professional’s charges such as barristers and valuers.

For a TOLATA claim to go from start to trail is likely to cost at least many thousands of pounds – and possibly tens of thousands of pounds – in your own legal costs.

We will advise you about funding possibilities, including insurance, when we consider your circumstances. We do not offer to fund client’s claims – including not through “No win, no fee” arrangements, nor credit.

English & Welsh litigation operates the basic principle of “the loser pays”, which means, if you ‘win’ the Court may order your opponent to pay some of your legal costs that you have paid. The making of such an order does not guarantee that your opponent will actually pay those costs – you may also need to take further action to try to force them to do so, and they might still not do so, e.g. if they become bankrupt, or simply ‘disappear’. Correspondingly, if you were to ‘lose’, then you might be ordered to pay your opponent’s costs. The Court might also take the view that there is no clear “winner” or “loser”, and make different orders about legal costs – including the possibility of no costs order at all.

If you have any questions or require any further information, please don’t hesitate to Contact Us.