TOLATA and Forcing the Sale of a Property: What You Need to Know

When a relationship ends, one of the most common, and most stressful, questions is:
“Can I force the sale of our property?”

For unmarried couples, the answer usually lies in the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). This is the key piece of legislation that governs property disputes between cohabitees, family members, and anyone who jointly owns property outside marriage or civil partnership.

If the sale of a property is in dispute, understanding how TOLATA works can make all the difference.

What is TOLATA?

TOLATA gives the court power to:

• Decide who owns what share of a property
• Determine who has the right to live in it
• Order the sale of the property
• Decide how the sale proceeds should be divided

It’s a rights‑based regime, not a fairness‑based one. The court isn’t there to “do what feels fair”; it’s there to enforce legal and beneficial ownership but it will consider things like contributions made.

Can you force the sale of a property after a breakup?

Often, yes. Under s.14 TOLATA, anyone with a legal or beneficial interest in a property can apply to the court for an order for sale.

This is commonly used when:

• One partner wants to sell but the other refuses
• One person has moved out but is still tied to the mortgage
• A co‑owner is blocking a sale for emotional or tactical reasons
• There is disagreement about each person’s share of the property

If negotiation fails, a TOLATA claim is the formal route to resolve the dispute.

How does the court decide whether to order a sale?

The court must consider the s.15 TOLATA factors, including:

1. The intentions of the people who bought the property

If the property was purchased as a home for a couple, that purpose may be considered “spent” once the relationship ends.

2. The current purpose of the property

If the relationship is over, the original purpose—cohabitation—may no longer apply.

3. The welfare of any children living in the property

This can justify postponing a sale, but it is not the overriding factor.

4. The interests of secured creditors

If the mortgage is in arrears, the court is unlikely to delay a sale.

In many cases, once a relationship has broken down and there are no compelling child‑related reasons to delay, the court will order a sale.

What if only one person is on the title deeds?

Even if the property is legally owned by one partner, the other may still have a beneficial interest. This can arise through:

• Common intention constructive trusts
• Resulting trusts
• Proprietary estoppel

Evidence of contributions to the deposit, mortgage, renovations, or shared intentions can all be relevant.

A TOLATA claim can establish that interest and secure a share of the sale proceeds.

What orders can the court make?

The court can:

• Order the immediate sale of the property
• Postpone the sale (often where children are involved)
• Declare each party’s beneficial share
• Regulate occupation until sale
• Appoint someone to conduct the sale if cooperation breaks down

This ensures the process can’t be obstructed by one party.

Do you have to go to court?

Not always. Many TOLATA disputes settle through alternative dispute resolution (“ADR”) such as mediation and without-prejudice negotiations. This is often the best way to deal with it as it allows for flexible solutions, and early ADR can save the parties incurring substantial costs which otherwise eat away at the only equity they have left.

But when agreement isn’t possible, a TOLATA claim provides a clear legal route to resolution.

Why early legal advice matters

TOLATA claims are technical, evidence‑driven, and often emotionally charged. Getting early advice can help you:

• Understand your rights
• Protect your financial position
• Avoid costly mistakes
• Strengthen your negotiating position
• Decide whether court action is necessary

If you’re facing a property dispute after a relationship breakdown, we are here to help.

How we can help

If you are involved in a dispute over jointly owned property, or are considering making or defending a TOLATA claim, our specialist Dispute Resolution team can provide clear, practical advice tailored to your situation.

We regularly advise clients on:

• TOLATA claims and applications for sale
• Disputes between co-owners and former partners
• Beneficial interest and constructive trust claims
• Property disputes involving unmarried couples
• Mediation and negotiated settlements

You can contact Ellie Claffey or view our Dispute Resolution page for more information.