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What can a court order regarding TOLATA?
A court can make a variety of orders when dealing with a TOLATA claim.
These include:
- What share of the property will be owned by each party
- An order to sell the property enabling the release of a party’s financial interest (when one party refuses to do so)
- As order to determine who is entitled to occupy the property
- Enable third parties to recover their interest in the property – for example parents or other relatives who have helped financially.
However, the court cannot adjust the share proportions in which a property is held, for example if one party wants to have a greater share of ownership post-separation.
What factors does the court take into consideration?
The court will primarily consider the intentions of your property ownership as a couple when looking at a TOLATA application. This includes factors like your intentions to live in it as a couple and share bills and other household expenses, regardless of whose name is on the mortgage.
They may also consider the purpose of the property, i.e., is it a family home, alongside the welfare of any children.
The law makes no distinction between married and unmarried parents when it comes to children, so they will be a part of the decision-making process with a TOLATA claim.
If there are third party interests in the property, these will also be considered by the court.
Defending a TOLATA Claim
If you are wanting to defend a claim that has been made against you, this is possible. However, you will need to provide your full reasons and as much evidence as possible.
The claimant can continue the claim if you dispute it, and it will likely proceed to court if this is the case. This can have cost implications.
TOLATA Application Process
There are 3 main application types:
- To decide which party is entitled to remain in the property
- To decide the extent and nature of the ownership of the property
- To order the sale of a property
TOLATA Application Process
There are 3 main application types:
- To decide which party is entitled to remain in the property
- To decide the extent and nature of the ownership of the property
- To order the sale of a property
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Pre Action
The claimant writes to the defendant (known at the Pre-Action Letter) setting out the basis of their claim, a summary of the facts they consider relevant and their objective (if it is fr a sum of money, how has this been calculated). The defendant then responds to that letter. Each party provides key documents that they believe will support their case. The separating couple should attempt a method of Alternative Dispute Resolution (ADR), for example mediation.
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Application to the court
Claim form is sent to the court and a TOLATA (claim court fee) must be paid.
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Response to the claim
The defendant then has 14 days from being served the claim to file their acknowledgement of service (AOS) and declare whether they admit or dispute the case. They have 28 days from service to file a defence and can include a counterclaim with the defence.
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Early settlement
If the defendant accepts the claim then negotiations can begin and the couple can resolve matters at this stage without the need for a court trial.
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Court trial
If you cannot settle the dispute, the matter will proceed to trial and the court will ultimately decide the outcome. However, this can be long-winded and expensive, so it is best to try to resolve the issue as soon as possible.
It is important to remember that a settlement can be reached at any point in this process, even during court proceedings, which is why it is helpful to engage properly in ADR – this will save time and costs.
Are there any protective measures?
Cohabitation Agreements
A cohabitation agreement is a written document drawn up between an unmarried couple who are living together specifying the ownership of property, finances, capital etc and what will happen in the event of relationship breakdown.
Cohabitation agreements tend to be more comprehensive than a Declaration of Trust (see below) and can not only govern what will happen should the relationship break down, but they can also cover day-to-day matters such as responsibility for paying the household outgoings and how the costs of repairs or improvements to the property are to be dealt with.
These agreements can be drawn up at any point in the relationship. With proper legal input, they can hold weight in court decisions should there be a dispute upon separation.
Declaration of Trust
A Declaration of Trust is an agreement that confirms the proportions in which a property is shared between an unmarried couple, or more than two people who have purchased a property and are living in it together, for example a group of friends.
It documents how the property should be split, and equity divided, should the relationship break down.
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