What is TOLATA?

Disputes about who owns what share of a property are can be bitterly fought, particularly when an unmarried couple separates. There is a widespread and dangerous myth that long-term cohabitants acquire rights as so-called common law spouses. They do not. When co-owners fall out, their dispute is resolved not by family law but by the law of trusts of land, under TOLATA. This guide explains what TOLATA is, when a claim arises, how the Court approaches it, what it costs, and how it differs from divorce.

What Does TOLATA Stand For?

TOLATA stands for the Trusts of Land and Appointment of Trustees Act 1996. It is the legislation that regulates the relationship between the owners of land and those with an interest in it, and it gives the Court powers to resolve disputes about that land. [Put this back in if it’s needed for SEO/AEO purposes but from my perspective it’s meaningless]

When Is a TOLATA Claim Used?

A TOLATA claim can be brought by anyone with an interest in a property who cannot resolve a dispute about it by agreement. In practice it is often used by a separating cohabiting couple who jointly own, or jointly occupy, a home. But TOLATA claims also arise between family members who have bought property together, between friends or business partners who co-own, and between an owner and someone who says they have acquired a beneficial interest through their contributions. The claim is the route to ask the Court to decide ownership shares, occupation and sale.

How Does TOLATA Apply to Cohabiting Couples?

TOLATA concerns trusts of land, where the legal owner of a property (the trustee) may be different from the person who benefits from it (the beneficiary). This means one member of a cohabiting couple may own a share of the family home despite not being named as a legal owner. Alternatively, both partners may be legal owners while the beneficial interest, the actual ownership of the equity, is not split equally between them.

If a separating couple cannot agree these matters, either can apply to the Court under TOLATA to determine a range of issues: whether they each own a share in the home and, if so, in what proportions; who may occupy it; and whether, and when, it should be sold.

Scott’s Experience: What determines a TOLATA case in practice

The Court will look at all the evidence together to establish how the parties intended the property would be owned and occupied. Written evidence is always more persuasive than oral evidence, as ex partners may have a different recollection of conversations and the Court will find it harder to decide what they intended.

How Does the Court Decide a TOLATA Claim?

The starting point in any trust of land case is what the parties intended. Where there is no express written agreement recording who owns what, the Court must try to infer the parties’ common intention from their conduct. Each case turns on its own facts, and the Court will examine the whole background of dealings between the parties: any discussions before buying the property, the reason it was bought, why it was put into sole or joint names, whether the couple had children, and how they arranged their finances. The leading authorities on how beneficial interests in a shared home are established and quantified include the House of Lords and Supreme Court decisions in Stack v Dowden and Jones v Kernott.

The Court’s powers come from section 14 of the Act, which allows it to make orders about the nature and extent of a person’s interest and about the property itself, including an order for sale. Section 15 sets out the factors the Court must weigh when deciding what order to make, including the intentions of the people who created the trust, the purpose for which the property is held, the welfare of any child who occupies it as their home, and the interests of any secured creditor.

How Is TOLATA Different From Divorce?

This is the single most important distinction, and it catches many people out. A TOLATA claim is a backwards-looking exercise: the Court asks what the parties intended and what they contributed and declares who owns what. A divorce is a forwards-looking exercise: the Family Court (applying the Matrimonial Causes Act 1973) divides property according to what is fair, having considered the parties’ present and future needs. The two approaches can produce very different results, which is precisely why cohabitants, who have no access to the matrimonial regime, can end up far worse off than they expect.

The procedural differences matter too, and costs are the most significant. TOLATA claims are civil proceedings in which costs generally follow the event, so a successful party may recover a substantial proportion of their costs, often in the region of 60 to 70 per cent. In family proceedings the general rule (with important exceptions) is that each party bears their own costs. Anyone considering a TOLATA claim must therefore weigh their potential liability for the other side’s costs if the claim fails, before taking a case to trial.

Scott’s Experience: The costs risk clients underestimate

This costs rule only applies where the Court makes a costs award, so it will not apply where parties settle a dispute before trial. In an out of Court settlement, the parties are free to agree whatever they want on the question of who pays whose costs, and how much they pay.

Can a TOLATA Claim Force a Sale of the Property?

Yes. One of the Court’s powers under section 14 is to order that the property be sold, which is often the practical objective where co-owners cannot agree and one wants to release their share. In deciding whether to order a sale, and on what terms, the Court applies the section 15 factors, weighing matters such as the purpose for which the property was bought and the welfare of any child living there. An order for sale is not automatic, but it is one of the most common outcomes sought in a TOLATA claim.

How Much Does a TOLATA Claim Cost?

There are two cost elements. The first is the Court fee to issue the claim, which is a civil Court fee and depends on the value of the claim. The second, and usually far larger, is the cost of the litigation itself, which varies with the complexity of the evidence and how far the matter runs. The critical point, as above, is the rule that unlike family proceedings, the losing party in a TOLATA claim is usually ordered to pay a large share of the winner’s costs. That makes early, realistic advice on the merits especially valuable, because the downside of losing is not just your own costs but a contribution to the other side’s.

Does TOLATA Apply to Married Couples?

On divorce, the family Courts generally determine property ownership using the matrimonial legislation rather than TOLATA. However, there is scope for a married person to use the TOLATA regime in some circumstances to seek a share in property that they might not otherwise be entitled to, and TOLATA can also be relevant to disputes involving third parties, such as a spouse and a parent who both claim an interest in a home. It is not exclusively a remedy for unmarried couples.

How Can I Protect Myself?

The best time to deal with these issues is before buying a property together, not after a relationship has broken down. A declaration of trust recording exactly how the beneficial interest is held, and a cohabitation agreement setting out what should happen on separation, can prevent a TOLATA dispute arising at all. Where a dispute has already arisen, early advice on the strength of your position, and on whether it makes tactical sense to issue a claim given the costs rules, is essential.

Scott’s Experience: What to do before buying a property together

Prevention is always better than cure. A well-drafted cohabitation agreement, signed before the parties buy a property, will set out what share the parties they would each have in the property. Be sure also to update the agreement if circumstances change.

New Developments

In June 2026, the Government published a consultation, proposing to change the law to allow cohabiting couples who have lived together for more than three years “needs led” rights in property, where legal ownership is not enough to meet a party’s needs. However even if the law is changed, the courts will still be less generous to cohabiting couples than to married couples. The consultation will close on 14 August 2026.

You can read more about the Government’s consultation here.

Getting Advice on a TOLATA Claim

TOLATA disputes are technical, fact-sensitive and carry a real costs risk, so the value of early, clear-eyed advice is hard to overstate, whether you are trying to establish a share in a home, resist a claim, or force a sale. Equally, if you are buying with someone, a little planning now can save a great deal later.

At Payne Hicks Beach, our Property Disputes team advises owners, occupiers and beneficiaries on the full range of TOLATA and co-ownership claims. If you would like to discuss your position, we would be glad to help.