Recovering Property: How To Regain Possession and/or Force a Sale

Regaining possession of property or claiming a financial interest can be challenging, even more so if you don’t hold the legal title to the property or the protection of a formal contract.

This article covers how you can regain possession and make a claim for a share of/interest in the property if you’re not a registered owner, and how long it might take.

We act in residential and commercial property disputes across England and Wales. If you’re in dispute with a co-owner, be that a family member, friend or former partner and want to protect your rights, contact our specialist property litigation solicitors. Our property litigation team regularly act in cases like yours. We work nationally and would love to help you.

Key Takeaways

• Problems in personal or business relationships often lead to disputes over co-owned property.
• There are options to recover possession of property or claim a financial interest even without legal ownership.
• The law recognises the parties’ original intentions, any financial contributions, and the right to compensation for parties not living in the property via an use and occupational rent claim.
• Early specialist legal advice protects rights to property and beneficial entitlements and does not mean court proceedings are unavoidable; there are other ways to achieve a resolution, including by negotiating a settlement during the pre-action phase (prior to issuance of court proceedings).

When You Might Need To Recover Possession Of Property

It’s typically easier to recover possession of property, land, or other assets if your position is protected by a formal legal arrangement that demonstrates ownership.

You may want to recover possession to sell the property or claim a share in the beneficial entitlement because your position has changed.

However, if you’re not formally recorded as a legal owner, it may be much harder to recover possession or support a claim for a financial stake in land or property.

Legal Routes To Regaining Possession

Court Proceedings For Possession

Going to court to obtain a possession order is an established legal route to regain possession. The court will need you to evidence your ownership or beneficial entitlement.

It’s important to understand that the court expects you and the other parties to explore all the alternatives to litigation first; this requirement is contained in the Civil Procedure Rules (CPR).

The idea is to use Alternative Dispute Resolution (ADR) to negotiate a settlement without escalating the case to court, avoiding long-drawn out disputes and higher costs. Litigation is always a last resort.  A failure to consider ADR without good reason may lead to adverse costs consequences, even if your underlying claim succeeds.

Demonstrating engagement with ADR demonstrates you have approached this reasonably and proportionately, thereby increasing the likelihood of the court ordering the opposing party to pay your legal costs if you do end up in court. ADR includes negotiations, mediation, and arbitration.

Whichever route applies to your situation, the earlier you take advice, the more options you’re likely to have. A quick conversation with our specialist solicitors can help you work out which one actually fits your circumstances before you commit to a strategy which may become costly to pivot from later down the line.

TOLATA Claims Between Co-Owners

Changes in relationships or diverging business interests often lead to disputes over property ownership and entitlements. A TOLATA claim can help recognise your rights and recover value in a property or land.

TOLATA stands for the Trust of Land and Appointment of Trustees Act 1996. This Act helps parties who jointly own property or land, but who don’t have the protection of a legal marriage or formal commercial arrangement.

You can potentially bring a TOLATA claim to ask the court to declare that, based on the parties’ common intention and your detrimental reliance, a constructive trust has arisen in your favour, giving you a beneficial interest in the property. The court can recognise such interests even where the agreement was not recorded in writing, because constructive trusts are exempt from the usual requirement for written evidence under section 53(2) of the Law of Property Act 1925. These matters are all case-specific and a detailed review of your claim by our specialist solicitors will help confirm your legal position.  

You may bring a TOLATA claim for a share of the proceeds of sale if you’re cohabiting with someone who is the sole owner of the property and you’re contributing towards costs and expenses. As above, this is always case specific. You may have made a financial contribution towards the following, without limitation:

• The purchase deposit
• Monthly costs, such as the mortgage
• Payments for upkeep and renovations to improve the value of the property

If you co-own a property with friends or have invested in property as part of a joint business venture but aren’t registered as an owner, the law may still support your rights.

As well as helping people who have no formal ownership rights or legal arrangement, TOLATA can also assist in situations where legal documentation is vague or silent. It also operates in mixed residential and business arrangements such as farms.

The court has the power to declare the legal and beneficial owners and your proportion or percentage of the property’s value. The same court proceedings can also be used for court orders confirming:

• Occupation rent
• Whether the property should be sold
• The sale price and the mechanism for sale
• Allocating entitlements and providing absolute certainty

Unjust Enrichment And Occupation Rent Claims

If you haven’t been living in a property or deriving any benefit from it but the other party has, you can apply under TOLATA for a court order requiring the occupying party to pay you an ‘occupation rent’, reflecting the period they have been resident. This is an equitable adjustment between co-owners under the trust, not an unjust enrichment claim.

Your entitlement is typically based on what a comparable property in the same location would achieve in rent, adjusted to reflect your ownership percentage.

Separately, unjust enrichment is a principle in English law where one party benefits at the expense of another in circumstances which are unjust. A claim for unjust enrichment can run alongside a possession dispute, but it is a distinct cause of action from an occupation rent claim.

What The Court Considers Before Granting Possession

In the absence of legal ownership or a formal commercial agreement, the court considers several factors, including, but not limited to:

• Your intention and that of the other party/parties when the arrangement started
• The purpose for which the property is held
• The interests of any secured creditors, such as a mortgage company, if there is negative equity
• Whether any children live in the property

These factors mean outcomes can vary significantly from case to case, which is why an early, honest assessment of your specific circumstances matters.

Costs And Realistic Timelines

Negotiation and mediation can offer rapid results at a fraction of the cost. However, if the other party contests your claim or refuses to act reasonably, then a dispute can drag on and take months to resolve.

It’s vital to explore all avenues before considering litigation to minimise the risk of an adverse costs order if you do end up in court.

If you’re weighing up whether to pursue this formally, our specialist property litigation solicitors can give you a realistic view of the likely costs and timeline for your specific situation before you commit to anything.

Common Mistakes That Delay Recovery

The most common mistake that delays recovery is failing to take specialist legal advice at an early stage. This happens with the best of intentions; perhaps, you hope to resolve the dispute amicably and don’t want to appear heavy-handed, or you’re worried about costs.

Delaying legal advice or not taking advice from the right people may prejudice your position. Disputes take longer to resolve, becoming more entrenched and ultimately more expensive.

Waiting too long can carry a more serious risk than added cost. If the other party remains in uninterrupted occupation for long enough, they may eventually be able to claim the property through adverse possession. For registered land under the Land Registration Act 2002, a person can apply to be registered as the proprietor after at least ten years of adverse possession, but the registered owner will be notified and can object. If the owner objects and the applicant cannot satisfy one of three statutory conditions, the application will likely fail, although the owner must then take steps to recover the land within two years, or the applicant may apply again. For unregistered land, the limitation period is twelve years under the Limitation Act 1980.  

When Early Legal Advice Changes The Outcome

Early legal advice changes the outcome of a dispute in several ways:

• It simplifies what can often be an emotionally-fraught situation, clarifying your rights based on a clear understanding of the facts
• Rather than fanning the flames, specialist guidance helps provide options on the way forward in a calm and dispassionate way
• Taking formal advice doesn’t mean your case will end up in court; it crystallises the issues and often helps make them easier to resolve once you are clear on your legal position
• Negotiation is part of the claims process, protecting your rights and sometimes finding a solution quickly and more cheaply

Specialist solicitors could also discover potential weaknesses in your claim which may not have been correctly managed when you first entered your property arrangement. This can sometimes lead to a separate claim against previous professional and legal advisers.

Frequently Asked Questions

What Is the Remedy for Unjust Enrichment?

The remedy for unjust enrichment is restitution, which requires the party who has been enriched to give back the benefit they gained at the expense of the other party. The law treats this as the reversal of the defendant’s gain rather than compensation for the claimant’s loss, reflecting a fundamentally different measure. Courts have discretion over how this is applied, so outcomes vary depending on the specifics of each case. 

Can You Legally Claim Abandoned Property?

You can claim legal ownership of abandoned property under English law, but the process is complex and lengthy. You’ll need a demonstrable intention to possess and actual, exclusive, continuous physical possession without the owner’s permission. This is known as adverse possession, and the qualifying period depends on whether the land is registered.  

How Long Does It Take To Regain Possession Of A Property?

Timeframes for recovering property largely depend on the willingness of parties to negotiate and compromise, how quickly you take legal advice, the complexity of the dispute, and whether you go to court. Skilled negotiation with willing parties can resolve a dispute in weeks. However, protracted or complicated disputes and those which go to court can take months or years to reach a conclusion.

Understanding Your Legal Position Helps You Recover Possession Faster And With Less Cost

Co-ownership arrangements that are not supported by legal ownership often run into trouble. What starts out as a good idea can later disintegrate into a dispute when intentions and plans change.

Disputes like these need more than general property law knowledge. They turn on the fine detail of TOLATA case law and how the courts weigh intention, contribution, and conduct between co-owners. This is our focus, not one of many services we offer, so we’re able to provide practical, strategic advice on co-ownership and identify the technical arguments needed to support a financial interest in property for someone without legal ownership.

You’ll get an accurate, fact-based appraisal of your case, along with an honest assessment of the likely outcomes, which are never guaranteed. We look for the quickest and most cost-effective solutions that align with your objectives while protecting your legal rights.

If you’re in a dispute over property occupied or withheld by another party or want to claim for unjust enrichment, speak to our specialist property litigation solicitors. Our team have decades of experience and would be happy to help you.