Home ownership disputes and the role of quia timet injunctions

In property disputes between co-owners, the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) is the governing legal framework. TOLATA enables parties to seek declarations about their beneficial interests in property and to request orders for sale. In some cases, a quia timet injunction may be necessary to preserve the status quo.

What is a quia timet injunction?

A quia timet injunction is a preventive remedy granted by the court to prevent wrongful acts that have not yet occurred but are threatened or imminent. Quia timet literally translates as “because he fears”. They are sometimes referred to as anticipatory injunctions. Their purpose is to prevent harm before it takes place, unlike other forms of injunction which respond to ongoing or past conduct, i.e. where the wrongdoing has already taken place (for instance, the granting of a mandatory injunction requiring a person to knock down an unlawfully built house).

In Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch) the High Court noted that, when considering whether to grant a quia timet injunction, the court must follow a two-stage test:

1. Is there a strong probability that, unless restrained by injunction, the defendant will act in breach of the claimant’s rights? The following factors could be relevant to consider at this stage:

• What other steps might be taken to ensure that harm does not occur.

• The attitude of the defendant.

• The timeframe between the application and the threatened action. The court often uses the language of imminence, meaning that the remedy sought must not be premature.

2. Would the defendant’s actions cause such serious and irreversible harm that money alone could not fix it? This is a difficult test to satisfy, as the payment of money will frequently be deemed as providing adequate relief.

The role of quia timet injunctions in TOLATA cases

A quia timet injunction may be sought in scenarios such as:

• Preventing the disposal or dissipation of property or sale proceeds by a co-owner before a claim is resolved.

• Preventing unlawful occupation of the property.

• Stopping unauthorised construction or alterations to the property.

• Protecting the property from damage by another party.

Consider a situation where two former cohabitees jointly own a home. One party moves out after a relationship breakdown and learns that the other is threatening to undertake structural alterations without agreement. Before a court has decided who is entitled to what, the former partner may seek a quia timet injunction to prevent any alterations that could diminish the property’s value or affect their interest.

The Birketts view

In many TOLATA disputes, the risk of pre-emptive or harmful actions makes the quia timet injunction an important tool. Quia timet injunctions provide a crucial safeguard while the parties’ rights are being determined.

As with any discretionary remedy, the success of a quia timet injunction depends on the facts of the case, the imminence and severity of the risk, and the ability to satisfy the court that intervention is both necessary and just.

For further guidance on protecting your beneficial interest in a property or resolving property disputes, please contact a member of the Home Ownership Disputes Team.