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ToLATA

(The Trusts of Land and Appointment of Trustees Act 1996)

Following a divorce, there is provision for the division of matrimonial assets, but what happens in the case of cohabiting, or once cohabiting, couples?

There are two main categories of Application that can be made under this Act:

  • To decide who is entitled to occupy the property and
  • To decide the ownership as between the two parties - where the property is owned by at least two people.

These Applications entitle a Court to decide who are the legal and beneficial owners of the property and in what shares.

A ToLATA case generally involves cohabitees. Unlike in divorce, this Act looks at the intention of the parties, rather than looking at what is ‘fair.’ The person who is not the legal owner is under an onus to prove their case ‘on the balance of probabilities.’

The following factors might be helpful to consider:

  • If there is an express Declaration of Trust, that is usually binding upon the parties;
  • Often there are disputes as to whether, on the breakdown of the relationship, the property ought to be sold;
  • In order to infer a Trust between the parties, one should look for common intention; detrimental reliance and unconscionable denial of rights.

This is a particularly complex area of law, mainly because the Act is not distinct in its guide as to what to rely upon to substantiate a claim. It can also be an all or nothing case, with serious consequences on costs if not handled correctly.

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