Property: What is TOLATA? and do I need a Declaration of Trust?
TOLATA
The Trusts of Land and Appointment of Trustees Act 1996 (known as TOLATA) gives the Courts power to resolve disputes about ownership of a property, or land. Disputes are usually between cohabiting couples but can also be between cohabiting friends and family members.
The court has discretionary powers to order any of the following:
-
To force the sale of land/property.
-
To reoccupy a former family home when an ex-partner refuses to leave.
-
To determine the share of the property that you each own.
When determining whether an order is to be made the Court will consider certain factors like the intention of the parties, the reasons for the purchase, any child that lives in the property who are under the age of 18, the interest of a secured creditor e.g. a lender. Please note this is not an exhaustive list, and the Court may consider other factors.
Usually when the property is first purchased your conveyancing solicitor will advise you on how the property can be held with the following three options:
-
Beneficial joint tenants - where each individual owns the whole of the property.
-
Tenants in common in equal shares- where each individual owns a separate share of the property.
-
Tenancy in common in unequal shares e.g. one could own 60%, whereas the other 40%.
The importance of a Declaration of Trust
This is a written document setting out who owns what shares in a property. The Declaration of Trust can specify other terms such as who will be responsible for the day-to-day costs of the property, such as mortgage repayments and utility bills.
An express Declaration of Trust is conclusive as to the demonstration of the party’s intentions of how the property’s ownership should be held. The parties will be held to that Declaration of Trust unless a successful claim is made to rescind or rectify the declaration.
In order to set aside a declaration of trust, some form of fraud or undue influence must be established which can be generally difficult as a declaration of trust is always decisive.
If you would like support or assistance in this matter, we have an experienced Litigation and Disputes team with expertise who you can provide you with accurate legal advice. We can discuss with you the best solution to resolve the situation.
Our experienced Litigation and Disputes team can support you in any queries you may have or further questions relating to TOLATA issues. Please contact us if you need any advice or support in these matters. Contact Us.
View all
