Q&As

An unmarried couple jointly own a property and following the breakdown of the relationship one party wishes to remain in that property with the children of the relationship until they are 18 years old. On an application under the Trusts of Land and Appointment of Trustees Act 1996, would the court have regard to that wish and the needs of the children? Would the approach be different if the children are not the children of both parties? Would there be any advantage in waiting until the other party makes an application under the TOLATA 1996 and then defending that application, or in issuing an application under Schedule 1 to the Children Act 1989?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 10/03/2020

The following Family Q&A Produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • An unmarried couple jointly own a property and following the breakdown of the relationship one party wishes to remain in that property with the children of the relationship until they are 18 years old. On an application under the Trusts of Land and Appointment of Trustees Act 1996, would the court have regard to that wish and the needs of the children? Would the approach be different if the children are not the children of both parties? Would there be any advantage in waiting until the other party makes an application under the TOLATA 1996 and then defending that application, or in issuing an application under Schedule 1 to the Children Act 1989?

The courts have the power pursuant to the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) to declare the beneficial interests of parties in property. The beneficial interest in a property is the 'true' ownership, distinct from the 'paper' ownership of who is registered at HM Land Registry as the registered proprietor(s). Such claims are commonly seen where parties cohabit (but do not marry) and the property is in the sole name of one, even though they have treated it as their family home, but may also relate to a jointly owned property. TOLATA 1996 can also be used to regulate the occupation of the property or for the court to order its sale. Cohabitation cases are governed by the principles set out in two cases of the House of Lords and the Supreme Court: Stack v Dowden and Jones v Kernott, as well as subsequent lower court authorities.

When the court is considering a TOLATA 1996 application, the court will have regard to:

  1. the intentions of the parties who created the trust

  2. the purposes for which the property is held

  3. the welfare of any minor who occupies or might reasonably be expected to

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