Trusts of Land (ToLATA) Dispute Guide

What are your next steps?

The first thing to do is establish what legal rights or title each party has to the land. There are 2 sets of rights regarding land, namely the legal title and the beneficial title. The legal title is usually what is registered with the Land Registry. The beneficial title is what people are truly entitled to. Beneficial rights can be acquired irrespective of whether a legal title has ever been registered in a person's name.

The starting point for determining a person's interest in land is any declaration or deed which sets this out. This may be in a form registered with the Land Registry, in a formal deed entered into between parties or in a contract. There are strict requirements to comply with for this to be valid and binding. If you do not have a copy of the title register documents you can go to the Land Registry web site and download a copy of the deeds for a very small fee.

Where there is no express binding declaration, the matter falls to be dealt with under the old law of trusts. Where a party contributes to the purchase price of property, a ‘resulting trust’ may arise. Where there is a common intention for a party to have an interest in the property, a ‘constructive trust’ may arise. If one party promises to the other that they will have a share in the property and they act in reliance on this, issues of estoppel may arise. All of the above can be used to help establish the proportionate ‘interest’ in a property. As such it is vital to provide as much evidence as possible, i.e. financial payments towards the mortgage or any improvements to the property. Plus evidence to show how you might have been put at a disadvantage or have altered your position because of an agreement between you and the other party.

If after all this, you decide to pursue your ToLATA claim, we would strongly advise you speak to a solicitor, as ensuring you have all the evidence you need at this point could save you a great deal of time and money later on.

Once you have done this, your solicitor should advise you to try Mediation or Alternative Dispute Resolution (ADR). Courts would always rather you try to solve your disputes via this process first, mainly because it’s cheaper for you, but also because you will play an active part in the end result, whereas once in Court, the Judge will make the decision based on the evidence he has in front of him and that takes away control from you completely. However, Mediation does not work for everyone and so if it doesn’t work for you, Court is your only option.

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The Next Steps

The Court Process

  1. Instruct a Solicitor or decide to carry out the claim yourself
  2. Apply to the Court for your case to be heard by completing a N208 court form with a written statement in support of the claim and pay the court fees
  3. Name the defendants in the case who are any other owner or other person with an interest in the property. Each of these people must be served with the proceedings.
  4. Upon service, the defendants must file an Acknowledgment of Service Form N210 form and written evidence within 14 days.
  5. Once the Acknowledgment of Service Form is filed, the Court will fix a hearing for directions.
  6. At the Directions Hearing, the District Judge will consider what additional Orders for discovery need to be made (that is the requirement of each party to disclose to the other party all relevant information and documentation relating to the case), for the filing of evidence and the future conduct of the case, as well as fixing the timetable for the final hearing.
  7. The case will then be adjourned for the final preparation of the case and the listing for a final hearing. The final hearing will not be for some months after the Directions Hearing.

Other Points The Court Will Consider

Once an interest in property is established, then using ToLATA, the Court takes into account the parties intention, the welfare of any child who lives there and the interests of any secured creditor, when deciding if and when the property should be sold to buy out the person's title. The court will also consider postponing either the sale of the property or payment of a lump sum from one party to another, if it considers it is in the best interests of the children that this is postponed until each of the children have obtained the age 18 or have finished fulltime education.

The above is merely meant as a guide, so if you need some advice, don’t hesitate to contact us, we’re here to help you throught this legal minefield!

We can help call us on 01935 823883