Month: July 2024

TOLATA

The Trusts of Land and Appointment of Trustees Act 1996 (known as TOLATA) gives the Courts power to resolve disputes about ownership of a property, or land. Disputes are usually between cohabiting couples but can also be between cohabiting friends and family members.

The court has discretionary powers to order any of the following:

• To force the sale of land/property.

• To reoccupy a former family home when an ex-partner refuses to leave.

• To determine the share of the property that you each own.

When determining whether an order is to be made the Court will consider certain factors like the intention of the parties, the reasons for the purchase, any child that lives in the property who are under the age of 18, the interest of a secured creditor e.g. a lender. Please note this is not an exhaustive list, and the Court may consider other factors.

Usually when the property is first purchased your conveyancing solicitor will advise you on how the property can be held with the following three options:

1. Beneficial joint tenants – where each individual owns the whole of the property.

2. Tenants in common in equal shares- where each individual owns a separate share of the property.

3. Tenancy in common in unequal shares e.g. one could own 60%, whereas the other 40%.

The importance of a Declaration of Trust

This is a written document setting out who owns what shares in a property. The Declaration of Trust can specify other terms such as who will be responsible for the day-to-day costs of the property, such as mortgage repayments and utility bills.

An express Declaration of Trust is conclusive as to the demonstration of the party’s intentions of how the property’s ownership should be held. The parties will be held to that Declaration of Trust unless a successful claim is made to rescind or rectify the declaration.

In order to set aside a declaration of trust, some form of fraud or undue influence must be established which can be generally difficult as a declaration of trust is always decisive.

If you would like support or assistance in this matter, we have an experienced Litigation and Disputes team with expertise who you can provide you with accurate legal advice. We can discuss with you the best solution to resolve the situation.

Our experienced Litigation and Disputes team can support you in any queries you may have or further questions relating to TOLATA issues. Please contact us if you need any advice or support in these matters.  Contact Us.

Attending court can be a daunting prospect. Here is some practical advice to ensure that your day runs as smoothly as possible.

1. Gather Evidence and Documentation:

Collect all relevant documents that support your case, or that you may need to refer the court to. This can include correspondence, school reports, medical records, financial statements, and witness statements. Organise the documents in a logical order so that you can easily locate them if necessary.

2. Understand the Legal Process:

Familiarise yourself with the court procedures and what to expect during the hearing. You can consult legal resources or seek advice from your solicitor to understand the specific requirements and processes of your case.

3. Preparing Your Position Statement:

Write a clear and concise statement outlining your position, the key facts of your case, and what you are seeking from the court. Practice presenting your statement to ensure you can convey your points effectively and confidently. Avoid emotional language and focus on logical, sensible points that you wish to make.

4. Dress Appropriately and Plan Your Day:

Dress smartly and conservatively for the court hearing. Plan your route to the court and allow extra time for potential delays to ensure you arrive on time. Bring all necessary documents, your statement, and any other materials you may need. You should arrange to be at court all day, regardless of how long your hearing is listed for.

5. Seek Legal Advice and Support:

If possible, and affordable, have a solicitor represent you or at least provide legal advice in the background. You can also bring a trusted friend or family member for moral support, though they won’t be able to join you in the courtroom.

6. Ask Questions:

If you don’t understand something, ask the Judge to explain it. They can’t give you legal advice, but they can, and will, explain their decision and what it means to you. If you have a legal representative, ask them to explain clearly what happened during the hearing and what, if any, next steps your need to take.

How Can Lawson West Help You?

The firm provides caring and supportive legal advice to families with matters ranging from pre-nuptials, divorces (including ex-pat divorces in foreign jurisdictions), separation, relationships, child care, parents and grandparents rights.

How to Contact Us

If you do need to talk through your personal relationship circumstances with someone who’s completely independent and unbiased, please do talk to us. We’re here to help and advise you and help you through the personal problems you face. You can rely on our experience, expertise and emotional support to put you on the right course of action, a path that’s totally right for your situation.

Get in touch today. We want to help.

What is a Specific Issue Order?

A Specific Issue Order is a type of order under Section 8 of the Children Act 1989. It is designed to resolve disputes or decisions concerning a child’s upbringing that parents or guardians cannot agree upon. These disputes can involve various aspects of a child’s life, such as education, religious upbringing, medical treatment, or relocation. The primary purpose of an SIO is to ensure that decisions are made in the best interests of the child.

What is a Prohibited Steps Order?

A Prohibited Steps Order is a type of order under Section 8 of the Children Act 1989. It is used to prevent one parent or guardian from taking specific actions concerning a child without the consent of the court. The order aims to protect the child’s welfare by restricting a parent’s ability to make decisions or undertake activities that could potentially harm the child’s well-being. This order is particularly useful in situations where there is a risk of unilateral actions being taken that could negatively impact the child.

Who can apply for a Specific Issue Order or a Prohibited Steps Order?

Only the following people can apply for an order without the court’s permission:

• a parent or guardian of the child

• any person with parental responsibility for the child

• any person who is named, in a Child Arrangements Order that is in force with respect to the child, as a person with whom the child is to live

Any other person will require to the court’s permission to proceed.

What factors will the court consider before making an order?

The court’s primary focus is the welfare and best interests of the child. The court will then consider various factors, such as:

• the child’s wishes and feelings (depending on their age and understanding)

• the child’s physical, emotional, and educational needs

• the potential impact of any changes on their well-being

• the child’s age, sex, background and any characteristics which the court considers relevant

• any harm the child has suffered or is at risk of suffering

• the capability of each parent to meet the child’s needs

• the range of powers available to the court in the proceedings in question

It is important to note that none of the factors will determine the outcome of an application in isolation. They will all be considered subject to the facts of each individual case.

How Can Lawson West Help You?

The firm provides caring and supportive legal advice to families with matters ranging from pre-nuptials, divorces (including ex-pat divorces in foreign jurisdictions), separation, relationships, child care, parents and grandparents rights.

How to Contact Us

If you do need to talk through your personal relationship circumstances with someone who’s completely independent and unbiased, please do talk to us. We’re here to help and advise you and help you through the personal problems you face. You can rely on our experience, expertise and emotional support to put you on the right course of action, a path that’s totally right for your situation.

Get in touch today. We want to help.