Cohabitant Land Dispute Procedure


The legal framework

The Trusts of Land and Appointment of Trustees Act 1996 (ToLATA) gives courts certain powers to resolve disputes about the ownership of land.

The dispute may relate to the legal or beneficial ownership of the property.

There are two main types of application that can be made under ToLATA to resolve disputes about land. These are:

  • to decide who is entitled to occupy, and
  • to decide the nature and extent of the ownership

of a property owned by two or more people.

Taken together, these applications permit a court to decide who are the legal and beneficial owners of a property, and in what proportions.

There are complementary powers in ToLATA that allow a court to direct the owner of land to behave in a certain way. In disputes about co-ownership, these powers are used most frequently to require a co-owned property to be sold so that the proceeds can be divided.

It is important to recognise that ToLATA limits a court to deciding on co-ownership of property. ToLATA does not give the court the power to vary that co-ownership, and adjust the proportions that each person owns.

The procedure before making an application:

Alternatives to court proceedings

Before court proceedings under ToLATA, the person planning to make an application should consider alternative ways to settle the dispute.

There are many types and models of Dispute Resolution (DR) besides court proceedings. The most frequently used are mediation and negotation.

Methods of DR besides court proceedings not compulsory. However, they are positively encouraged. If court proceedings are issued, the Judge dealing with the case will be interested to see if other methods of DR have been tried. The court can impose penalties if DR has not been attempted. A common form of penalty applied relates to the costs of the proceedings.

DR apart from court proceedings should be considered at all stages of a dispute.

The pre-action letter

Any person wishing to start court proceedings to resolve a land ownership dispute (the claimant) is required first to set out in a letter the basis of dispute and what they propose asking the court to do. This is known as a pre-action letter. A pre-action letter is a requirement in almost all situations. The only exceptions are situations where the need to have the court deal with an issue is urgent. The pre-action letter should outline the background to the claim and the legal principles relied upon. It should also identify any documents on which the claimant intends to rely in support of the proposed claim.

The defendant then has 14 days from receipt within which to acknowledge that they have received the pre-action letter. The defendant ought to provide a full response within 30 days of receipt. More time can be sought if the issues are particularly complicated. That full response should indicate whether the proposed claim is accepted or disputed. If disputed, the reasons for that should be provided. Any documents relied upon by the defendant should likewise be identified.

This exchange process is called the pre-action protocol.

Experts

As part of the pre-action protocol, the claimant and defendant are entitled to involve an expert to help them negotiate a compromise. The expert can provide an opinion to help resolve the whole claim, or part of it. In disputes about land, the experts involved most frequently are valuers and surveyors, to help put a value on the land in question.

Urgent issues

It will be appropriate in most cases to use the pre-action protocol and try to resolve a dispute using DR before starting court proceedings. However, there may be a small number of cases where an approach to the court is needed urgently. That urgency may make the pre-action protocol unsuitable, and likewise forms of DR.

Examples of situations where court action might be needed prior to DR or application of the pre-action protocol include where orders (called injunctions) are needed:

  • to ensure a property is not dealt with in a way that might prejudice the claimant’s case, until the case is resolved;
  • to ensure that documents that are relevant to the dispute are provided by one party to the other, if a party has been unwilling to provide those voluntarily, and
  • to preserve documents that are relevant to the dispute if there is a risk the other party might destroy or hide those.

Making a court application

If it has not been possible to resolve a claim using other forms of DR and / or the pre-action protocol, the claimant will have to start court proceedings against the defendant. Claims about land ownership are usually started in the County Court responsible for the area where the defendant lives.

Different rules apply to different types of court claim. The rules that apply to claims about land ownership are the Civil Procedure Rules 1998 (CPR).

Issuing the application

The application that starts the court process is called a Claim Form.

A claimant must summarise in the Claim Form:

  • what he or she is claiming and why;
  • the evidence relied upon;
  • the value of the claim, and
  • the order sought from the court.

A fee is payable on the Claim Form, which varies depending on the value of the claim.

The defendant’s response

The CPR sets out rules for when and how a defendant must respond to a Claim Form.

If a defendant does not respond to a Claim Form in time, the claimant may be able to ask the court to grant the claim.

Case allocation

Once a court knows a land claim is disputed by a defendant, it will identify the resources needed to resolve it.

It does this by allocating a dispute to a track. There are three tracks, and allocation is generally decided by the value of the claim and the complexity of the dispute.

Depending on the track to which a case is assigned, the court will want to set down a structure for how the rest of the case will be run (called directions) or will schedule a Case Management Conference (CMC).

Directions & CMCs

Unless a case is particularly complex, the court might make directions without calling a hearing and without the parties (or their lawyers) needing to go to court.

Directions commonly made in land disputes include:

  • a timetable for serving any further written evidence;
  • a timetable for disclosing and exchanging any relevant documents;
  • regarding expert evidence: deciding whether an expert is needed, in what discipline, what questions ought to be asked, whether the expert should be a single joint expert, etc;
  • where the trial should take place, and
  • how long the trial will last.

At any stage, the court may schedule a CMC, and there may be more than one. At a CMC, the court will:

  • review the progress of the claim and preparations for trial;
  • consider compliance by all parties with existing directions
  • make any further directions needed to progress the claim, and
  • if possible, try to help identify and reduce the issues between the parties.

Offers to settle

At any time before the trial, either party may make an offer to compromise the claim. The CPR provides a mechanism for communicating settlement offers on a formal basis. Offers made using this mechanism are called Part 36 offers. A Part 36 offer must:

  • be in writing, and
  • remain open for acceptance for at least 21 days.

A Part 36 offer will not be shown to the Judge who hears the trial, but will be shown to him or her when it comes to arguments about costs.

Trial

This is the court hearing at which a Judge reads the documents, listens to the witnesses, hears legal argument and then makes a decision on the claim.

In most land disputes, the trial will last for at least a day.

The general rule is that the trial will be in open court. This means that members of the public and press will be allowed into the courtroom to hear the case. A Judge may decide that a particular case involves issues that justify the public and press being excluded from the courtroom, but this is unusual.

After reading the documents, hearing the evidence and considering the legal arguments, the Judge will give his or her decision (the Judgment). The Judgment has to explain the reasons for the decision taken. If the facts were disputed, the Judgment should say what the Judge found them to be. It should set out the legal principles that are relevant and how the Judge applied them to the case.

Costs

The Judge who hears the trial usually also has to decide what to do about the costs of the claim.

The general rule in these cases is that costs will follow the outcome. So, a claimant who makes a successful claim will usually be entitled to recover costs. A defendant who successfully disputes a claim will usually be entitled to recover costs.

However, the court retains the power to make the costs order it believes does justice to the case overall. Situations where a court may decide not to apply the general rule include to penalise a party for not trying other forms of DR or not using the pre-action protocol. The court will also take into account any Part 36 and other settlement offers made, the response to those, and how those offers compare to the Judgment.

How can we help?

  • Identify alternatives to commencing court proceedings that will help resolve land disputes, and which is best for your situation;
  • If court proceedings cannot be avoided, work with you to prepare or respond to the Pre-Action Letter;
  • Identify and instruct any experts whose opinion may be useful or necessary to resolve a dispute;
  • Represent you in any application for urgent orders, to preserve assets or evidence;
  • Represent you in the substantive proceedings from commencement through to trial;
  • Prepare, consider and / or respond on your behalf to any Part 36 offers;
  • Advise generally in relation to your exposure to a costs order, and how best to protect you on costs.

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