TOLATA claims: bringing Part 7 or Part 8 proceedings

When a property is owned by two or more people, the law automatically treats it as being held on trust, even if there is no written trust document. In practice, this means the legal owners hold the property for the benefit of one or more beneficiaries, who may be the same people as the legal owners or different individuals altogether, and who may hold equal or unequal shares in the property.

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) provides the legal framework for resolving disputes about jointly owned property. These disputes commonly arise following a relationship breakdown, family disagreement, or where one owner wants to sell but the other does not.

If a dispute cannot be resolved through negotiation, one party may need to apply to the court for a decision. A TOLATA claim can ask the court to:

• decide who owns what share of the property
• order that the property be sold and/or
• decide whether one party is owed money because of payments made towards the property (known as an equitable account – see our previous article on equitable accounting).

A key early decision is how the claim should be issued: under Part 7 or Part 8 of the Civil Procedure Rules (CPR). Choosing the wrong procedure can lead to delays and increased legal costs, so it is important to understand the difference.

Part 7 claims: the standard court process

A Part 7 claim is the most common type of civil claim. It is used where there are disagreements about the facts and the court needs to hear evidence in order to decide what actually happened.

The Part 7 process is broadly as outlined below.

• Claim Form and Particulars of Claim: The claimant initiates the claim by issuing a Claim Form and Particulars of Claim explaining the dispute, the orders being sought, and the legal basis for the claim.

• The Defendant’s response: The defendant must respond within a set time (usually 14 or 28 days), either by admitting the claim or filing a defence explaining why they disagree.

• Directions: The court then sets a timetable for how the case will progress, usually at a hearing known as a Case and Costs Management Conference (CCMC). Standard directions typically include deadlines for two steps.
  • Disclosure – both sides must share relevant documents, even if they harm their own case.
  • Witness statements – written evidence from each party (and any other witnesses) explaining their version of events.

• Costs budgeting: The parties must prepare a costs budget (known as a Precedent H) setting out legal costs already incurred and estimated future costs up to trial. The judge will consider the budgets at the CCMC and approve the level of costs each party may recover. Generally, costs incurred above the approved budget will not be recoverable from the other side.

• Trial: If the case does not settle, it will proceed to trial where the judge hears evidence and legal submissions.

• Judgment: The judge makes a final decision and determines how the legal costs of the litigation should be borne between the parties.

When is Part 7 appropriate in TOLATA cases?

A Part 7 claim is usually required where there is a significant factual dispute between the parties, for example:

• who paid the deposit or mortgage
• whether there was an agreement about ownership shares
• what the parties intended when the property was bought.

If the judge needs to decide between competing versions of events, a Part 7 claim is the correct route.

Part 8 claims: a simpler procedure

A Part 8 claim is a shorter and more streamlined process. It is designed for cases where the facts are largely agreed, and the court is being asked to exercise administrative functions or make a specific order.

A common example is where there is no dispute over ownership shares, but one party requires the court’s assistance to force a sale because their co-owner is unresponsive or uncooperative.  

The Part 8 process is broadly as outlined below.

• Claim Form and Witness Statements: The claim is issued using a Claim Form, supported by written evidence (witness statements) instead of Particulars of Claim.

• Defendant’s response:The defendant usually has 14 days to file evidence (witness statements) in response.

• Directions: The court may give directions dealing with the next procedural steps, such as whether expert evidence (for example, a valuation) is required. At this stage, the court will also consider whether it is appropriate for the claim to continue under the Part 8 process.

• Final hearing: The judge makes a final decision and determines how the legal costs of the litigation should be borne between the parties.

Choosing between Part 7 and Part 8

Choosing whether to bring a Part 7 or Part 8 claim depends on several factors, including the complexity of the case and the nature of the dispute. Below is a handy guide.

• Use Part 7 where there is a substantial dispute of fact, particularly about ownership shares, or where there is a disputed or complex equitable accounting claim that requires evidence of the parties’ conduct or a detailed review of money spent on the property.

• Use Part 8 where the facts and beneficial shares are not in dispute and you are primarily seeking an order for sale (with or without directions as to how the sale should be conducted).

The best chance of success

Part 7 and Part 8 claims serve different purposes in TOLATA disputes. Understanding which procedure applies to your situation can save time, reduce costs, and avoid unnecessary complications.

If you are involved in a dispute about jointly owned property – whether about ownership shares, sale of the property, or financial contributions – obtaining legal advice at an early stage can help ensure your claim is brought in the correct way and give you the best chance of a successful outcome.

For further guidance on issuing a TOLATA claim or resolving property disputes, please contact a member of the Home Ownership Disputes Team.