Preparing for a TOLATA claim: what to expect and how to get ready

This is the second article in our series exploring property disputes between cohabiting couples. In our first article, Understanding TOLATA: a practical guide for cohabiting couples, we explained how the law applies when relationships end.

In this follow up, we focus on what happens next – how to prepare if a dispute is developing and what to expect if litigation becomes a possibility.

What happens before a TOLATA claim is issued?

Before court proceedings begin, there is usually a period of pre-action correspondence. This is the stage where both parties set out their position, respond to allegations and explore whether an agreement can be reached.

This early exchange plays an important role. It helps each side understand:

• the other party’s case

• the evidence being relied upon

• the potential risks and costs involved.

In many situations, this stage creates an opportunity to resolve matters without formal proceedings. Failing to engage with it properly can lead to consequences later, including costs penalties.

What information should you gather early?

If you are considering bringing or defending a TOLATA claim, having the right information, early, helps your legal team assess your position and advise you effectively.

Key documents and details typically include:

• property records, such as Land Registry entries and title information

• any agreements, including declarations of trust or cohabitation agreements

• a timeline of your relationship, including key events and living arrangements

• financial contributions, such as deposits, mortgage payments and household expenses

• evidence of discussions or intentions about ownership

• details of any children, including living arrangements and care responsibilities

• information about renovations or improvements made to the property

You may not have everything immediately, particularly if time has passed. Even partial information can help build a clearer picture.

How does the litigation process work?

If a dispute cannot be resolved through discussion or negotiation, court proceedings may be issued under TOLATA.

There are different routes, depending on the nature of the dispute.

• Part 7 claims are typically used where there are disputes of fact requiring evidence and, potentially, a trial.

• Part 8 claims may be appropriate where the parties need the court to decide a specific legal issue or interpret an existing agreement.

Each route has its own procedure, timing and cost considerations. Understanding which approach applies is an important part of preparing your case.

Can litigation be avoided?

Court proceedings can be time consuming, expensive and involve risk. Where possible, many disputes are resolved through:

• direct negotiation

• solicitor led discussions

• mediation or other forms of alternative dispute resolution.

Taking advice early can help you explore these options and decide on the most practical way forward.

While it’s not easy to plan for the worst, there are many steps you can take to protect yourself before a relationship breaks down.

For example, if you’re purchasing a property with a partner, you can have your solicitor draw up a declaration of trust or a cohabitation agreement to record how the purchase has been funded and how you would intend the proceeds of sale to be split in the event of a separation.

This aims to clarify ownership and financial arrangements upfront to avoid future disputes in the event of a separation.

How Hill Dickinson can support you

Preparing for a potential TOLATA claim can feel uncertain, particularly if you have not been involved in legal proceedings before. At Hill Dickinson, we work with you to understand your circumstances, assess the available evidence and explain your options in straightforward terms.

If you’d like to talk through your situation or explore how we can support you through a cohabitation dispute, our Dispute Resolution team is here to help.