Becket Chambers has experienced a surge in applications under the Trusts of Land and Appointment of Trustees Act 1996 (‘TOLATA’) in which former cohabitees are seeking an order for sale or declaration of their interest in a property.
The first thing to note is that if you are not married, the court does not have a discretion to award shares of a property in the same way as it can under the Matrimonial Causes Act 1973. The regime is far stricter under TOLATA, looking at what was expressly agreed or what the parties’ intentions were.
The following is a brief summary of the position for cohabitees under TOLATA.
If the property is in joint names and there is an express declaration of trust (in form TR1 or otherwise): the deed is conclusive in the absence of fraud, mistake or undue influence (Goodman v. Gallant  1 FLR 513). The only way to argue for a greater share is if proprietary estoppel can be established, however such claims are not without their difficulties.
If the property is in joint names and there is no express declaration of trust: the starting-point is that ‘equity follows the law’ and therefore that joint names means equal shares. The burden of proof is on the person seeking to show otherwise, and this is an onerous burden. It either must be shown that the parties held a different common intention at the point of acquisition or that there was a subsequently formed common intention for different beneficial ownership. If the court must infer an intention, it will look at what is fair “having regard to the whole course of dealing between them in relation to the property”: Kernott v. Jones  UKSC 53.
If the property is in a sole name: the starting-point is that ‘equity follows the law’ and therefore that the sole legal owner is the sole beneficial owner. The court will look at whether there was a common intention for the beneficial interest to be shared, whether by some express discussion or something which can be inferred. However it suggested that the court should be “sceptical of the value of alleged improvements that are really insignificant, or elaborate arguments…as to how the family finances were arranged”: Stack v. Dowden  UKHL 17. If the court is required to infer an intention, the non-legal owner must also establish detrimental reliance.
As can be seen above, the TR1 document and conveyancing file will be the starting-point for most TOLATA enquiries. These should be obtained before a claim is issued. It is not enough to simply argue that “I put in more than she did” or “I paid more of the mortgage”.
Have the children been considered? If cohabitees have children together who are still minors, thought should be given to an application under Schedule 1 of the Children Act 1989. This allows the court to make provision for children during their minority even where the parties are not married. This type of application is often issued to be heard alongside a TOLATA application. The court has powers to transfer property, order the payment of lump sums or allow a parent to remain in a property during a child’s minority.