Unmarried Couples & Cohabiting Relationships

You may have a claim, regardless of what the deeds say. Our family solicitors regularly advise on claims under TOLATA, including joint ownership and sole ownership disputes where financial contributions or promises create beneficial interests.

The two most common claims are: 

• A property is held in two or more parties’ names, but there is an imbalance in the financial contributions they both made (“Joint ownership cases”). For example, a house might be legally owned by 2 people, but 1 party has made a higher contribution to the deposit or has paid all the mortgage repayments for a long period
• A property is held in one party’s name, but another party has made a financial contribution to it or been promised a share of it (“Sole ownership cases”). The party who is not a legal owner might have contributed to the deposit, mortgage repayments and / or renovations. A dispute can arise as to whether that party has acquired an interest in the property

These claims are dealt with under the Trust of Land and Appointment of Trustees Act 1996 (“TOLATA”).  

The legal ownership of a property can be established by looking at the Land Registry Office Copy Entries (“OCE”), also known as the deeds.

A jointly owned property can be legally held as either joint tenants in law and equity or as tenants in common (in equal or unequal shares).  

The difference between these 2 forms of legal ownership is that joint tenants own 100% of the property in question. If one party were to pass away before the other, the survivor would automatically inherit their entire share in the property (and vice-versa). This is a common form of legal property ownership for unmarried and married couples.  

In contrast, tenants in common have a fixed legal interest in a property. If there are 2 legal owners who are tenants in common in equal shares, they both own 50% of the property. Tenants in common in unequal shares own a specified percentage of the property. If one party passes away before the other, the deceased’s share will pass in accordance with their Will (or the intestacy rules, if they die without making a Will).  

It is also possible to have a beneficial interest in a property. That can be in addition to or instead of a legal interest. Beneficial interests are not stated on the legal title. They “sit behind the curtain”.  

For example, a person may have contributed financially towards the property, but not be named on the deeds. Also, someone under the age of 18 cannot legally own property. If a child inherits property, the legal title will be conveyed into the name of an adult who will hold the property on trust whilst a separate trust deed will confirm that the child holds 100% of the beneficial interest in the property.  

There are different types of implied trust, including:

• Resulting trusts: A resulting trust can arise when one party makes a direct financial contribution to a property (usually a contribution to the purchase price, deposit or substantial renovations)
• Constructive trusts: A constructive trust can arise when one party contributes to a property and both parties had a common intention to share the property
• Proprietary estoppel: This can arise where one party is encouraged by another to make a contribution to a property, on the understanding that they will acquire an interest in the same; and in doing so, they act to their detriment

The court has a wide discretion to make any order it thinks fit. This may include ordering the sale of property, determining the shares of each party, or deciding who can occupy the property. 

Yes. The court retains discretion and may order a sale if it is just and reasonable, even if one party disagrees. However, the court will consider the purpose of the trust and other relevant factors before making such an order. 

Yes. TOLATA applies to all trusts of land, whether the property is a family home or an investment property, and whether the co-owners are related or not.