By Katarina Morgan

Senior Associate Solicitor & CEDR Accredited Mediator

11 February 2026

Blog News

Pretty much every article that you read regarding co-ownership of property will very likely suggest that the parties should record their intentions of how the property will be owned in writing, usually by a declaration of trust. In practice though, parties may have purchased their property many years ago and may not have put their intentions in writing at the time or their intentions have changed since something was recorded. So, what happens in this instance and a dispute arises?

In land law in England and Wales, there are two types of ownership: legal and beneficial. A legal owner is one who is the proprietor on the title deeds. A beneficial owner is one who holds a share of the equity in the property, usually by making financial contributions to its purchase and/or paying the mortgage.

When parties co-own a property, they do so on trust for each other. You cannot physically separate a property so instead each party holds the other’s share on trust for them. Therefore, a trust and beneficiary relationship is created, and the powers and responsibilities under that trust are governed by TOLATA (shortened for Trust of Land and Appointment of Trustees Act 1996). (Note: this only applies to non-married co-owners; this article does not cover married couples or civil partners.) How each party holds the trust will depend on the facts.

A common argument advanced in co-ownership of property/TOLATA disputes is that a common intention constructive trust was created. This type of trust arises where it is unconscionable for Person A, who holds the asset, to deny Person B of their beneficial interest in that asset, and both Persons A and B shared a common intention that B would have a beneficial interest in that asset, and B relied on that intention and acted to their detriment.

Common examples of common intention constructive trusts are parties who bought a property together only for it to be registered in one of their names (see my first article of this mini-series – Should I have my name of the title deeds?) whilst they both contributed to it over the years either through mortgage payments or renovation works; or where one party took on more work in their career to fund renovations; or where one party gave up their secure council tenancy to move into the property. The circumstances will govern if this argument can be advanced.

Common intention constructive trusts can arise either where the parties’ intentions are expressed or inferred through their whole course of conduct in relation to the property. The main ingredient required to prove this argument is that Person B/the claimant suffered a detrimental reliance if they are looking for the Court to intervene. The Court has in recent years upheld the long-standing principle that detrimental reliance is what makes an unenforceable agreement or promise enforceable in equity.

These arguments will be entirely reliant on evidence. That evidence can be written, oral or inferred by the parties’ conduct. Contemporaneous written evidence will almost always carry more weight, hence the suggestion to record your intentions in writing at the time.

Common intention constructive trusts are extremely complex legal arguments and need to be fully supported by the facts and evidence. It is also one of the many arguments that can be advanced in these types of claims. In the event of a (potential) dispute, it is therefore important that you seek legal advice as soon as possible.

This is part 2 of a series of 4 mini-articles covering TOLATA (Trusts of Land and Appointment of Trustees Act 1996)

If you wish to discuss any of the issues highlighted in this article, please contact a member of our team here.

Disclaimer: General Information Provided Only

Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.