Co-ownership Disputes

Co-ownership disputes can be legally and emotionally complex, particularly where significant financial interests or personal relationships are involved. Whether you are seeking to force a sale, to resist one, to establish the extent of your beneficial interest, or to resolve a dispute about the occupation or management of co-owned property, our property disputes solicitors have extensive experience advising co-owners and helping them achieve a resolution.

What is a co-owned property?

A property owned by multiple people or legal entities is described as co-owned. This can apply to an individual residential home, land, properties owned as part of an investment portfolio, commercial properties and landed estates. There are two types of co-ownership arrangements; joint tenancy or tenancy in common. In a dispute situation it is important to understand which type of co-ownership arrangement you are part of.

You will find answers to common questions around co-ownership disputes in the FAQs at the bottom of this page.

What is TOLATA?

TOLATA governs the law relating to trusts of land. Where two or more people own property together (whether as joint tenants or tenants in common) that property is held on trust, and the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), provides the legal framework that determines how that trust operates, what powers the trustees have and, critically, how disputes between co-owners are resolved.

When do TOLATA disputes arise?

TOLATA disputes arise in a wide variety of contexts such as:

unmarried couples who have purchased a home together and subsequently separate or where one partner has contributed to the purchase or improvement of a property that is legally owned by the other;
business partners who have jointly acquired investment or development property;
family members who have inherited property together or who have contributed to the purchase of a property in circumstances that give rise to a beneficial interest; and
investors who hold property through informal arrangements where the legal and beneficial ownership may have diverged over time.

The court has broad powers under TOLATA, including the power to order the sale of the property, to declare the nature and extent of each co-owner’s beneficial interest, to make orders regulating the occupation of the property, and to make orders relating to the exercise of the trustees’ functions.

Understanding how those powers operate and how the court is likely to exercise its discretion in any given case, requires specialist legal advice.

Co-ownership disputes and family law

TOLATA disputes most frequently arise in the context of relationship breakdown: where an unmarried couple separates having purchased a home together, or where one partner has contributed to the purchase or improvement of a property that is legally owned by the other. Their rights in relation to jointly owned or disputed property must be determined under the law of trusts, including TOLATA and the law of resulting and constructive trusts.

Where a TOLATA dispute arises in the context of the breakdown of a relationship (whether between cohabiting partners or family members) it will often intersect with other issues, including arrangements for any children, the distribution of other assets and the parties’ respective financial positions. In those circumstances, it is important that the property dispute is considered in the round and that advice is taken that reflects the full picture.

What does a co-ownership solicitor do?

Where relevant, the firm’s property disputes team works in conjunction with the firm’s family solicitors who advise on all aspects of relationship breakdown for married couples, including cohabitation agreements, the occupation of the family home and the financial consequences of separation.

Where the separating couple have children, Schedule 1 to the Children Act 1989 may also be relevant: Schedule 1 gives the court the power to make financial provision for children of unmarried parents, including orders requiring one parent to transfer property to the other or to settle property for the benefit of a child. This can have a direct bearing on how a co-owned property is dealt with on separation (for example, by enabling the parent with care of the children to remain in the property until the children reach adulthood, even where a TOLATA application for sale would otherwise succeed).

The property disputes team and the family team work closely together to ensure that clients receive joined-up advice across both areas.

Why choose B P Collins as your co-ownership dispute solicitors?

With over 60 years of experience in dispute resolution, we’re consistently ranked by Chambers UK and The Legal 500 for the strength of our property disputes practice. Our solicitors have extensive experience advising co-owners in all contexts.

Our property disputes team has extensive experience advising co-owners in all contexts. The team understands that the objective in most cases is to achieve a practical and satisfactory resolution. This could be agreeing the terms on which a property is sold, establishing a party’s beneficial interest so that a fair division of the proceeds can be made, or finding a way for co-owners to continue to hold property together on terms that reflect their respective contributions and intentions. B P Collins’ team’s ethos is simple: solve the client’s problem.

Early advice can frequently result in a swift outcome, avoid unnecessary escalation and protect your position.

Contact our co-ownership dispute solicitors today

For further information or advice, a co-ownership dispute to achieve a practical solution, please contact our specialist solicitors. Our teams are based in London, Thame and Gerrards Cross, and can be contacted on 01753 889995 or at enquiries@bpcollins.co.uk.

Co-ownership Disputes FAQs

What is a joint tenancy?

Under a joint tenancy, the co-owners hold the property as a single unit, without distinct shares. If one joint tenant dies, their interest in the property passes automatically to the surviving joint tenant or tenants by operation of the right of survivorship; it does not pass under the deceased's will or the law of intestacy. Joint tenancies are common between married couples and civil partners.

What is a tenancy in common?

Under a tenancy in common, the co-owners each hold a distinct share in the property (equal or unequal) and on death, each owner's share passes under their will or the law of intestacy, rather than automatically to the survivor. Tenancies in common are common between business partners, investors and unmarried couples who have contributed unequal amounts to the purchase.

What is the difference between a joint tenancy and a tenancy in common?

A joint tenancy and a tenancy in common are two ways of owning property jointly. The key difference is what happens on death and how each owner’s share is treated. Under a joint tenancy, all owners hold the property together as a single unit, and on death one owner’s interest automatically passes to the surviving owners. Under a tenancy in common, each owner holds a separate share, which can be unequal and can be left by will. There is no automatic right of survivorship, and disputes are assessed based on each party’s defined share. The difference lies in the ways in which two or more people can jointly own property, and the distinction has important consequences for what happens on death and on any dispute about the property.

Can a joint tenancy can be converted into a tenancy in common?

Yes, this process is known as severing the joint tenancy. The joint tenancy can be severed by one co-owner serving a written notice of severance on the other. Severance takes effect immediately and is irrevocable. It is commonly done where co-owners separate or where one party wishes to ensure that their share passes under their will rather than to the survivor.

Severance can also occur without a formal written notice, through the conduct of the parties. A joint tenancy may be severed by a mutual agreement between the co-owners to treat their interests as separate shares, by a course of dealing that is inconsistent with the continuation of a joint tenancy, or, in some circumstances, by unilateral acts such as a declaration of bankruptcy, the commencement of legal proceedings seeking a division of the property, or entering into a contract to dispose of one party’s interest. Severance by conduct is a fact-sensitive question.

What is a beneficial interest and how is it established?

A beneficial interest is the right to enjoy the economic benefit of the property, even if that right is not reflected in the legal title. The legal owner of a property (the person or persons whose name appears on the title register) and the beneficial owner are not always the same. Beneficial interests arise most commonly under resulting or constructive trusts:

A resulting trust arises where a person contributes to the purchase price of a property but is not registered as a legal owner. In those circumstances, it is presumed that the legal owner holds the property on trust for the contributing party to the extent of their financial contribution.
A constructive trust arises where there is a common intention between the parties that a person should have a beneficial interest in the property (whether expressed in words or inferred from their conduct) and that person has acted to their detriment in reliance on that common intention. Constructive trusts are commonly claimed by a partner who has contributed to mortgage payments, renovation works or other expenditure on a property that is legally owned by the other partner, in circumstances where there was an understanding, even if informal, that they would acquire a share.

How are the proceeds of sale divided between co-owners?

The proceeds of sale are divided based on the nature and extent of each co-owner's beneficial interest in the property.

For a joint tenancy, the starting point is an equal split.
For a tenancy in common, the division follows any declaration of trust, or if none exists, the parties’ contributions and intentions. A declaration of trust is usually decisive and helps avoid disputes. Without one, the court will assess the evidence, which can be complex and uncertain.

We strongly advise co-owners to execute a declaration of trust at the time of purchase, particularly where contributions are unequal or where the parties' intentions differ from an equal split.

What is a declaration of trust and do I need one?

A declaration of trust is a legal document that sets out how co-owners hold a property including their respective shares and any agreed arrangements for its use and management.

It is the most effective way of avoiding uncertainty and dispute between co-owners, and is strongly recommended where contributions are unequal or where the parties do not intend to own the property in equal shares.

A well-drafted declaration of trust typically records each party’s share, how costs such as the mortgage and maintenance will be paid, and what should happen if one owner wishes to sell or dies.

Can a co-owner be excluded from the property?

Yes, a co-owner can be excluded from a property, but this usually requires a court order. In cases of relationship breakdown, the court may grant an occupation order, particularly where there is domestic abuse/ a risk of harm. This area of expertise falls under the B P Collins' family law team.

In other disputes, such as between business partners or investors, the court can make orders under TOLATA to regulate occupation or require a sale. The property disputes team at B P Collins can advise on the available options and the most appropriate course of action in each case.

The outcome will depend on the facts of the case, so early legal advice is important to understand the available options.

I am not on the title, but I believe I have a share in the property. What can I do?

A person who is not registered as a legal owner can nonetheless have a beneficial interest in a property if they can establish that a resulting or constructive trust has arisen in their favour. For example, because they contributed to the purchase price, made mortgage payments, or carried out or funded substantial improvements to the property in circumstances where there was a common understanding that they would acquire a share.

Where a beneficial interest is established, the claimant can apply to the court under TOLATA for a declaration of their interest and, if appropriate, for an order for sale and the distribution of the proceeds to reflect their share.

These claims are highly fact-specific, and the strength of any claim will depend on the evidence available, including financial records, communications and witness evidence about the parties' understanding and intentions. Early legal advice is essential: the longer a potential claimant waits, the harder it may be to gather the evidence needed to establish their interest, and there are limitation considerations that may affect the ability to bring a claim in respect of older contributions.

What is Schedule 1 to the Children Act 1989 and how does it interact with a co-ownership dispute?

Schedule 1 of the Children Act 1989 gives the court the power to make financial provision for a child where the parents are not married or in a civil partnership. It is the primary mechanism by which an unmarried parent can seek financial provision from the other parent (including orders relating to property) in circumstances where the financial remedy jurisdiction available to divorcing couples under the Matrimonial Causes Act 1973 does not apply.

Schedule 1 often overlaps with TOLATA claims. One parent applies under TOLATA for an order for sale of a co-owned property, the other may seek a Schedule 1 settlement order to defer that sale for the benefit of the children. The court will take the child’s welfare into account and may defer a sale until the children are grown.

These cases are fact specific and require coordinated legal advice between a property and family teams to ensure the right outcome for both the property and the child.

Schedule 1 applications are handled by B P Collins’ specialist family team. Where a co-ownership dispute arises in the context of an unmarried couple with children, the property disputes team and the family team work closely together to ensure that clients receive coordinated advice across both areas.

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