TOLATA Claims: A Guide on Co-Ownership and Property Disputes

Property ownership in England and Wales is not always straightforward, especially where more than one person has an interest in a property, or where the legal title does not reflect the true financial contributions of the parties involved.

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) provides the legal framework for resolving disputes about land held on trust. The fundamental are the same, whether arising between co-habiting partners, family members, business partners, trustees, or beneficiaries.

At Napthens, our property litigation specialists regularly advise on complex TOLATA claims, including disputes arising during the breakdown of relationships, disagreements between co-owners, and increasingly, situations where property forms part of a deceased person’s estate, an area that overlaps with contentious probate.

This guide explains what TOLATA claims are, when they arise, how the courts decide them, and why they matter in both co-ownership and probate-related disputes.

What Is a Trust of Land?

A trust of land arises whenever land is held by one or more people (the “trustees”) for the benefit of others (the “beneficiaries”). A trust can be:

• Express: For example when declared in writing at purchase
• Implied or resulting: Arising from financial contributions
• Constructive: Based on shared intention or conduct
• Created via a will or estate (common in probate situations)

TOLATA removed the historic rule that trustees had a duty to sell land. Instead, trustees now have broader powers, and beneficiaries have clearer rights to occupy, manage, or realise their interest in the property.

What Are TOLATA Claims?

A TOLATA claim is an application to the court made under section 14, asking the court to determine:

• Who owns what share of a property (the ‘beneficial interest’)
• Who has the right to live in the property
• Whether the property should be sold (or whether the sale should be postponed)
• How trustees should act, or whether they should be replaced

The Act therefore provides the courts with wide-ranging powers to resolve disputes.

People commonly bring TOLATA claims when a relationship breaks down, when co-owners disagree, or when the legal title does not accurately reflect contributions.

Common Situations Where TOLATA Claims Arise

1. Cohabitees and Relationship Breakdown

Unmarried couples are one of the most common groups to rely on TOLATA. Issues arise when:

• only one partner is on the legal title,
• contributions are disputed, or
• one person wants to stay while the other wants to sell.

TOLATA allows the court to decide both ownership and occupation rights.

2. Disputes Between Family Members

Family members who jointly purchase or inherit property may disagree over:

• whether property should be sold,
• how to divide proceeds, or
• whether one person has a greater beneficial interest.

3. Property Purchased with Unequal Contributions

Where parties have made different levels of financial input, but the legal title is silent or misleading, TOLATA provides a mechanism to determine actual ownership shares.

4. Property Acquired for Investment or Business Purposes

Joint ventures and informal business arrangements often lead to disputes around:

• ownership of investment properties,
• income from rental properties,
• responsibility for mortgage or maintenance costs.

5. Contentious Probate

Although TOLATA is not primarily a probate law, it frequently applies where:

• property forms part of a deceased person’s estate,
• a surviving co-owner claims a beneficial interest,
• beneficiaries dispute ownership or occupation,
• executors need clarity before distributing the estate.

For example:
If a deceased parent owned a property jointly with an adult child who contributed to mortgage or renovations, that child may assert a TOLATA beneficial interest claim. This has the potential to alter the size of the estate available for distribution.

TOLATA can therefore operate alongside claims under the Inheritance (Provision for Family and Dependants) Act 1975, executor disputes, or challenges to a will.

Who Can Bring a TOLATA Claim?

A claim may be brought by anyone with a legal or beneficial interest in the property, including:

• Legal owners (trustees)
• Co-owners
• Beneficiaries with an interest in the trust of land
• Personal representatives (in certain circumstances)
• Creditors or third parties with a legitimate claim against the trust property.

Who cannot bring a claim?

Under section 18 the Act, a personal representative may not be able to force a sale solely through TOLATA, though other legal mechanisms may be available. This is especially relevant in probate disputes.

Orders the Court Can Make Under TOLATA

The court has wide discretion and can grant several types of orders, including:

1. Order for Sale or Postponement of Sale

The court may order a sale (or postpone it) depending on the purpose for which the property is held, the parties’ intentions, and the needs of any occupants (especially children).

2. Declaration of Beneficial Interests

The court can determine:

• Whether someone has a beneficial interest
• The size of that interest

This is often the central issue in TOLATA claims.

3. Occupation Orders

The court may determine:

• Who is entitled to live in the property
• On what terms
• Whether someone must vacate

4. Appointment, Replacement or Removal of Trustees

Where trustees are uncooperative or conflicted, the court can appoint new trustees or remove existing ones.

How the Court Decides TOLATA Claims

The court will consider a range of statutory and practical factors, including:

• The intentions of the parties at the time the trust was created
• The purpose for which the property is held
• The welfare of any children living at the property
• The interests of secured creditors
• Financial and non-financial contributions (such as improvements, renovations, home-making)
• Whether an implied or constructive trust arose
• The conduct of the parties (in limited circumstances)

Because each case turns on its facts, detailed evidence is essential.

Evidence Needed in a TOLATA Claim

Courts rely heavily on documentation. Helpful evidence may include:

• Bank statements showing contributions
• Transfer deeds and trust declarations
• Mortgage records
• Property valuations
• Renovation invoices
• Correspondence or messages showing intentions
• Witness evidence
• Records of repayments or shared expenses.

Early gathering of evidence significantly strengthens a case.

Alternatives to Court: Mediation & Negotiation

Many TOLATA disputes are resolved without a full trial. Options include:

• Mediation: often mandatory before trial
• Round-table meetings
• Expert property valuations
• Negotiated settlements
• Consent orders finalising agreed terms

This approach can be quicker, cheaper, and less adversarial. This is especially true where family members or ex-partners are involved.

Timeframes and Costs

While each case varies:

• Straightforward declaratory claims may conclude within 6–12 months
• Cases involving probate, large estates, or disputed occupation can take longer
• Costs depend on complexity, evidence required, and whether settlement is reached early.

Napthens can provide cost estimates and staged budgeting for transparency.

How Napthens Can Help

As specialists in property litigation and contentious probate, Napthens provides tailored advice on:

• Co-ownership disputes and beneficial interest claims
• Declarations of trust and express trust drafting
• Occupation disputes and right-to-remain issues
• Sale disputes and court applications
• Executor or beneficiary disagreements involving property
• Alternative dispute resolution and mediation
• Strategic advice on whether to bring or defend a TOLATA claim.

Whether you are a co-owner, beneficiary, surviving partner, executor, or trustee, our team can help you navigate the complexities of property rights and TOLATA remedies.

Get in touch today via our form to speak with an expert.

Conclusion

TOLATA claims play a central role in modern property disputes, offering a flexible and powerful route for resolving disagreements about ownership, occupation, and sale. While commonly used in cohabitation and co-ownership disputes, TOLATA is equally important in the context of estate administration and contentious probate, where property interests are often unclear or disputed.

With both property litigation and probate expertise, Napthens is uniquely placed to advise on these issues and provide clear strategic guidance from the outset.