When co-owners of a property cannot agree on whether to sell, an application for an Order for Sale under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) may be necessary.
Our TOLATA specialists can guide you through this complex process – whether you are seeking to sell, prevent a sale, or protect your financial interest.
Common situations
When the legal title or deeds of a property list two or more individuals as owners, the agreement of all named owners is required before a sale can proceed.
If one owner refuses to consent, the sale cannot take place, and the current co-ownership arrangement continues.
This scenario often arises on the breakdown of relationships. One party might move out, leaving the other in sole occupation. The person who remains might resist selling, particularly if they would find it difficult to buy a comparable property. Meanwhile, the person who has left may still be contributing to the mortgage and other expenses while paying for their new accommodation – leading to frustration and a desire to resolve the matter.
Typical examples include:
- former partners or cohabitants who jointly purchased a property and have since separated
- friends or relatives who invested together but now disagree on how to deal with the asset
- disputes following a relationship breakdown where one party remains in occupation and the other wishes to recover their investment.
In these situations, a co-owner can apply to the court under section 14 of TOLATA for an order that the property be sold, breaking the deadlock.
How does the court decide whether to order a sale?
When considering an application, the court exercises its discretion under section 14 of TOLATA, guided by the factors set out in section 15, including:
- the intentions of the person(s) who created the trust
- the purpose for which the property is held
- the welfare of any minor who occupies or might reasonably be expected to occupy the property (whether or not the minor is a child of the relationship)
- the interests of any secured creditor.
No one factor carries greater weight than the others – the court will consider all the circumstances of the case before reaching a decision.
How Birketts can help
Our TOLATA specialists provide clear, pragmatic advice to both claimants and defendants in Order for Sale disputes. We can:
- analyse your ownership position and any trust arrangements
- advise you on prospects of success and potential cost exposure
- seek to resolve matters through negotiation or mediation wherever possible
- represent you robustly in court proceedings if settlement cannot be achieved.
We can also assist with other remedies that may be necessary or desirable, such as:
- obtaining an order requiring an occupying party to vacate the property before sale
- obtaining an order authorising a third-party to sign conveyancing documents on behalf of an uncooperative owner.
Buy-outs
We can also assist when one party seeks to buy-out their co-owner’s interest in the property. This is often achievable through negotiation, provided a price for the outgoing owner’s share can be agreed.
Valuation is usually key – we can advise on appropriate valuation methods and represent you in any buy-out discussions.
If an agreement cannot be reached, we will represent your best interests in court, whether you are seeking an order to purchase the property or resisting a buy-out application.
Our experience
- Representing a disabled gentleman in conflict with his former cohabiting partner. His former partner wished to remain living in the property until her young children (from a former relationship) were adults. At trial, we secured (among other things) an immediate order for sale, releasing our client’s equity and his liability under the mortgage, allowing him to obtain secure accommodation elsewhere.
- Representing one of three siblings in conflict over commercial premises after a co-owner’s death, where the estate sought an open market sale. We guided the client through complex valuation issues, including contamination and redevelopment potential, to secure a successful buy-out at mediation. This enabled the client to retain ownership and continue operating their business from the premises.
- Representing a client in a dispute over a family property in which one of his opponents was represented by a ‘litigation friend’. We obtained an order for sale and enforced it via a further hearing when the opponents failed to cooperate with the sale.
