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Published On: July 25, 2016 | Blog | 0 comments

Am I entitled to a share of the house? Claims under the Trust of Land and Appointment of Trustee Act 1996 (ToLATA claims)

People who live together, be it friends, unmarried partners or as is more and more often the case, adult children, and parents, often believe that as a result of the cohabitation they have some automatic right to the property.  Unfortunately, this is not the case.

The legal owner of the property is the person whose name is entered on the property’s title.   Anyone who is uncertain about who the owner of a specific piece of land is may obtain a copy of the Land Registry record, which names the owners.

Having established the legal ownership of the property, the next thing one needs to look out for is the existence of any written declaration as to the beneficial ownership of the property, i.e. a document setting out whether the legal owners hold the land for themselves and if so in what shares, or for others. It may have been prepared when the property was bought or much later (when children were born, when someone moved in or out, etc.).  If any such declaration exists, unless there is something that might invalidate it (e.g. revocation, mistake, duress, or fraud), the ownership and shares in the property will be as set out in the declaration.  A court will not normally allow cohabitants to go behind any such declaration.  What if there is no declaration?

When the property is owned in law by more than one person, it is important to establish whether they own the property as joint tenants or tenants in common.  This can be established from reading the Land Registry record mentioned above.

When the property is owned as joint tenants, the co-owners do not have their separate, identifiable share of the property.  They simply own it together.  On the death of one, the property automatically passes to the other.   When the property is owned as tenants in common, each owner has their own share, which they can leave in their will.  Unless tenants in common signed a declaration confirming what share in the property they own (they would have done so on the document effecting the transfer of ownership into their names – TR1 form), they will be presumed to own equal shares.

How else can the property be owned by non-legal owners or by co-owners when there is no declaration as to ownership? Beneficial ownership in a property may be acquired as a result of a resulting or constructive trust.  Interest may also be acquired as a result of a promise.

A resulting trust can be found to exist by reference to the contributions made by co-owners or cohabitants, either when the property was bought or later.  Contributions can take the form of contribution towards the purchase price, deposit or mortgage (even simply being a party to the mortgage application).  Contributions will nearly always lead to corresponding beneficial interest.

A constructive trust can be implied if there is evidence of a common intention about the beneficial ownership either at the time of purchase or later.  The evidence of common intention may be either evidence of a specific conversation when beneficial ownership was discussed or circumstantial evidence about the conduct of each co-owner or co-habitant which will help to establish what the intentions of the parties were.

If you need specific advice about the chances of establishing a claim to beneficial share in a property by you or anyone contesting your absolute ownership title, please contact me or a member of my team.

To read my blog in Polish, please click here.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

David Wedgwood

Head of Civil Litigation Joint Head of Court of Protection

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