Cohabitation, Property Disputes, and TOLATA: Why Specialist Advice Matters

• Has your relationship broken down, but you’re not married?
• Did you buy a property with your parent/child or grandparent/grandchild with the intention of multi-generational living, only for the relationship to break down?
• Did you buy a property together, but only one name is on the deeds?
• Have you contributed to the mortgage, deposit, or renovations, but been told you have “no rights”?
• Or has someone you once owned a home with comeback years later claiming a share in your property?

If any of this sounds familiar, you’re not alone. This article from Senior Consultant Family Solicitor Alastair Sinclair explores the laws on cohabitation and what you can do if one of these scenarios happens to you.

Cohabiting couples

Cohabiting couples are now the fastest-growing family type in the UK, with more than 3.6 million people living together outside marriage or civil partnership. Yet the law has failed to keep pace. Unlike divorcing spouses, cohabitants have no automatic right to property or financial provision when a relationship ends.

Many people still believe in the myth of a “common law marriage”, a legal status that simply does not exist. The reality can be harsh: one partner may be left with nothing, while the other retains the property entirely.

Multigenerational living

Multigenerational living has become an increasingly common feature of UK households, with around 7% of homes accommodating two or more generations and surveys suggesting that up to 30% of adults live in households with multiple generations present.

This trend is reflected in the growing popularity of self-contained garden annexes, often called “granny flats,” which provide independent accommodation for older relatives while keeping them close to family. The surge in annex or cabin in the garden builds (some reports show a 300% increase since 2018) is driven by economic pressures, such as high house prices and mortgage challenges, as well as demographic factors, including older relatives wishing to “age in place” and adult children pooling resources for home ownership.

What are the pitfalls of cohabitation?

In my experience, sadly these arrangements frequently give rise to disputes over ownership, occupation, or beneficial interest, meaning that clear documentation of intentions and financial contributions is essential to prevent claims under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).

This is exactly where my practice focuses. As a solicitor with expertise in both family law and property litigation, I specialise in disputes under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA)- cases that sit in the difficult space between two areas of law, where many practitioners hesitate to act.

These cases are complex. They require understanding both the technicalities of land law and the emotional and practical realities of family breakdown. Many family solicitors avoid them because of the property issues; many property solicitors avoid them because of the family dynamics. I am an expert in both areas, allowing me to approach these cases with the full range of legal and strategic tools needed.

Over the years, I’ve successfully helped clients recover substantial sums, often hundreds of thousands of pounds, in cases where they were told they had no claim at all.

What is TOLATA and why does it matter?

TOLATA provides a route for unmarried individuals to establish or defend an interest in a property, even where they are not the legal owner.

In essence, it allows someone to claim that, despite not being on the title deeds, their financial or non-financial contributions, paying towards the deposit, mortgage, or renovations give rise to an equitable (or “beneficial”) interest in the property. An assurance or an agreement may also be used to establish an interest in the property.

Importantly, these rights may still exist even if you’ve moved out. Walking away from the relationship doesn’t automatically mean walking away from your claim.

What are the different types of TOLATA claim?

TOLATA claims arise in a variety of situations, most commonly:

• Establishing or defending a beneficial interest: where one person seeks to prove their contribution gives them a share in the property.
• Seeking an order for sale: to realise their share or force a sale when agreement cannot be reached.
• Determining shares or entitlement: where there’s a dispute over how much each person owns.
• Recovering funds: for example, when one partner has contributed to the mortgage or renovations but their name isn’t on the deeds.

Each claim depends on the facts and evidence, particularly the parties’ financial contributions, intentions, and conduct during ownership.

What’s the process of making a TOLATA claim?

Most TOLATA disputes can and should begin with negotiation or mediation, rather than rushing to court. At Setfords, I work with clients to explore early resolution, often achieving settlement before proceedings are issued.

If agreement isn’t possible, a claim is made in the County Court under TOLATA. The court will then determine:

• Whether a beneficial interest exists, and
• What share (if any) each party holds.

Evidence is crucial: Bank transfers, mortgage statements, messages and even verbal witness accounts of discussions about ownership can all play a part.

How long does a TOLATA claim take?

Where cases can be resolved through negotiation or mediation, they may conclude within a few months. If court proceedings become necessary, the process can take a year or more. However, much depends on the complexity of the issues and the level of cooperation between the parties.

My approach is always to resolve efficiently and proportionately, with an emphasis on early settlement where possible.

How do I prevent a claim?

The best protection is clarity. Cohabiting couples or families can avoid future disputes by putting agreements in writing:

• A Declaration of Trust confirming who owns what share of the property.
• A Cohabitation Agreement setting out each person’s financial rights and responsibilities.

These documents can prevent years of uncertainty and, in many cases, avoid litigation entirely.

How do I prove a beneficial interest?

You don’t have to be on the deeds to prove an interest. Evidence can include:

• Contributions to the deposit or mortgage payments.
• Funding or carrying out renovations or major improvements.
• Correspondence showing an agreement or shared intention about ownership.
• Circumstances indicating one party relied on assurances to their financial detriment.

Each case is fact-specific. The key is demonstrating a clear link between your contribution and your expectation of ownership.

A law in need of reform

The law remains out of step with modern family life. Married couples have clear entitlements; cohabitants must rely on complex trust arguments.

Encouragingly, the government has pledged to consult on cohabitation reform, and Resolution, the family lawyers’ association, continues to campaign for fairer rights. Commentators, including the Law Gazette, warn that the current framework leaves too many people unprotected.

Reform will take time. Until then, the best way to safeguard your position is with specialist advice early on.

How do I protect my position?

Whether you’re still living in the property, or left some time ago, you may still have rights that deserve to be recognised. The key is not to assume, but to take advice early.

At Setfords, I specialise in these complex claims at the intersection of property and family law. My work includes advising both those seeking to establish a claim and those defending against one, often through negotiation and mediation before it reaches court.

If you’re concerned about your rights, or know someone who might be, I’m here to help.

Contact me, Alastair Sinclair, directly and in confidence, on 01483 340736.