Key takeaways
Living together doesn't create automatic property rights
Cohabiting couples have different legal rights from married couples and civil partners.
Ownership and occupation are not always the same
A person's rights may depend on legal and beneficial ownership arrangements.
Many disputes can be resolved without court
Early advice, negotiation and mediation may help reach agreement sooner.
TOLATA FAQs: common questions about property rights for cohabiting couples
This is the third article in our series exploring property disputes involving cohabiting couples and TOLATA claims. In our first article, Understanding TOLATA: a practical guide for cohabiting couples, we looked at the fundamentals of the Trusts of Land and Appointment of Trustees Act 1996 and when it applies. In our second article, Preparing for a TOLATA claim: what to expect and how to get ready, we examined the steps involved when a dispute develops and litigation becomes a possibility.
In this article, we answer some of the most common questions about TOLATA claims, beneficial ownership, property disputes and the rights of cohabiting couples.
What is the difference between legal ownership and beneficial ownership?
Legal ownership refers to whose name appears on the property's title register at HM Land Registry.
Beneficial ownership refers to who is entitled to a financial interest in the property and any proceeds from its eventual sale.
What is the difference between a joint tenancy and a tenancy in common?
Property can be owned in different ways.
With a joint tenancy, the owners have equal rights over the whole property. If one owner dies, their interest automatically passes to the surviving owner through the right of survivorship.
With a tenancy in common, each owner holds a separate share of the property. Those shares may be equal or unequal. On death, an owner's share does not automatically pass to the other owner.
Is there such a thing as a common law marriage?
No. Despite the term being widely used, there is no such thing as a ‘common law marriage’ in England and Wales.
No matter how long a couple has been together, or indeed lived together, cohabitation alone does not give the same legal rights as marriage or civil partnership.
Property disputes between cohabiting couples are generally dealt with under TOLATA, and the rights available are more limited than those available to spouses or civil partners.
What is TOLATA and when does it apply?
TOLATA stands for the Trusts of Land and Appointment of Trustees Act 1996.
It applies when there is a dispute about property ownership, occupation or sale. This often arises following the breakdown of a relationship between cohabiting partners, but it can also apply to disputes involving family members, friends or other co-owners.
Can I claim a share of a property if my name is not on the title deeds?
Potentially, yes.
Where a property is held in one person's sole name, the starting position is generally that the legal owner owns the entire beneficial interest. However, another person may be able to establish a beneficial interest if they can provide evidence of a shared intention that they should have an interest in the property and that they acted to their detriment in reliance on that understanding.
Does living in a property give me ownership rights?
Not automatically.
Simply living in a property does not usually create a beneficial interest. The court will look at the circumstances of the case, including financial contributions, discussions about ownership and other relevant evidence.
Can the court stop a property from being sold if children live there?
Yes. In some circumstances, the court can postpone the sale of a property where children are living in the home. While this does not automatically create a financial interest for a parent, the welfare of any minor children occupying the property may be a factor the court takes into account when deciding whether a sale should be postponed.
Do all TOLATA disputes end up in court?
Not always. Many disputes are resolved through negotiation, mediation or other forms of alternative dispute resolution. Reaching an agreement outside court can often save time, cost and stress.
However, where the parties cannot agree, court proceedings may be necessary to determine the issues in dispute.
What evidence will the court consider?
The court will assess the evidence available in each case. This may include:
financial contributions towards the purchase price, mortgage or household expenses
discussions about ownership arrangements
any written agreements.
How long does a TOLATA claim take?
If court proceedings are required, a case can take upwards of six months to reach trial and, in more complex cases, may take two to three years.
How Hill Dickinson can support you
The information in this article is intended as a general overview and should not be relied upon as legal advice. Specific advice should be sought based on the facts of your individual circumstances.
If you have questions about your rights, ownership of a property or whether you may have a potential claim, it's important to understand your position as early as possible. 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. Our Family team also work closely with our Dispute Resolution team, preparing separation agreements where couples are able to reach a compromise outside of court. Or they can assist with additional legal claims that may be available on behalf of children or in circumstances where a couple were engaged.
Contact us today to find out how we can help.
