TOLATA barristers for disputes over shared property.

Where a property is in joint names without a declaration of trust, the starting point is that the owners hold it equally. Following Stack v Dowden and Jones v Kernott, a party who says the shares are unequal has to prove a different common intention, which can be inferred from the whole course of dealing, including who paid what and how finances were organised.

Where a property is in one name only, the other party must show that it was intended they should have a share and that they relied on that intention to their detriment. Direct financial contributions are powerful evidence, but so are clear conversations and substantial work on the property.

An express declaration of trust, whether in the TR1 transfer or a separate deed, is usually conclusive. Claims to go behind it are possible but difficult, typically requiring fraud, mistake or a later agreement to vary the shares.

• Claims to a share of a home held in a former partner's sole name
• Disputes about unequal shares in a jointly owned property
• Applications for an order for sale or to postpone a sale
• Equitable accounting for mortgage payments, improvements and occupation rent
• Parental contributions: gift, loan or share of the property
• Proprietary estoppel claims running alongside TOLATA
• Buy to let and investment properties owned by friends or relatives
• Disputes between trustees and beneficiaries of land

TOLATA claims follow the Pre Action Protocol for civil claims. That means a detailed letter of claim, a response, disclosure of key documents and a genuine attempt at settlement, often by mediation, before proceedings are issued.

If the claim is issued, it usually proceeds under Part 7 or Part 8 of the Civil Procedure Rules in the County Court, with larger cases in the Business and Property Courts. There will be a case management hearing, disclosure, witness statements, sometimes a valuation expert, and a trial.

Costs follow the event, so the losing party usually pays the winner's costs. Well timed settlement offers, including Part 36 offers, can shift that risk decisively, and counsel will advise on when and how to make them.

Every fee is fixed and agreed in writing before work begins. Written advice typically costs between £750 and £2,000 plus VAT depending on the volume of papers and the complexity of the issues.

Court attendance is where most of the cost lies. In most cases you should expect at least £1,000 for counsel to attend a hearing, with longer or contested hearings priced per day once the evidence and bundle are known. Hourly rates are available for ongoing advisory work, but most clients prefer the certainty of fixed fees for each stage.

It is free to send Clerk&Counsel an enquiry. If you instruct a barrister through us, a Clerk&Counsel service fee of up to £150, depending on urgency, applies and is shown separately from the barrister's professional fee before you decide.

Clerk&Counsel is an intermediary and clerking service. We do not provide legal advice or legal representation. Barristers instructed through us are independent practitioners regulated by the Bar Standards Board and are responsible for the legal services they provide.