Section 15 TOLATA Factors: Property Disputes With Children (2026)

Children change everything in a TOLATA dispute. When a property is home to children, the court's approach to ordering a sale shifts significantly. Section 15(1)(c) of TOLATA 1996 requires the court to consider "the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home." This article explains how children's welfare influences TOLATA outcomes and what alternatives exist.

What Is Section 15?

Section 15 of TOLATA sets out the matters the court must consider when exercising its discretion under section 14 (which gives the court power to make orders relating to trusts of land, including orders for sale).

The Statutory Factors

Section 15(1) provides that the court shall have regard to:

Where the application is made by a trustee of land who is also a beneficiary, section 15(2) adds a further consideration:

"The circumstances and wishes of each of the beneficiaries who is (or apart from any previous exercise by the trustees of their powers under section 13 would be) entitled to occupy the land."

The Hierarchy of Factors

Section 15 does not create a strict hierarchy. The court must weigh all factors in the circumstances of each case. However, case law has established some general principles:

• Where there is no bankruptcy, children's welfare carries significant weight and can postpone a sale for years
• Where there is a bankruptcy, the interests of creditors typically override children's welfare after one year (section 335A of the Insolvency Act 1986)
• The purposes of the trust are important—if the property was acquired as a family home and children still live there, the purpose has not been fulfilled

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The Section 15(1) Factors Explained

(a) Intentions of the Person(s) Who Created the Trust

The court considers why the trust was created in the first place. In domestic TOLATA cases, this usually means examining why the parties acquired the property together or why one party contributed to a property in the other's name.

(b) Purposes for Which the Property Is Held

This factor overlaps with (a) but focuses on the current purpose rather than the original intention. The key question is whether the purpose for which the property was acquired has been fulfilled or has become impracticable.

The leading case is Re Citro [1991] 1 Ch 142, where the Court of Appeal held that the purpose of a trust for a family home continues for as long as it is needed as a home—particularly where children are in occupation.

"Where property has been acquired for occupation as a family home, the purpose of the trust is to provide a home. That purpose continues for so long as the family needs a home, and particularly where there are minor children." — Re Citro [1991] 1 Ch 142

(c) Welfare of Any Minor Occupying the Property

This is the factor most frequently relied upon to resist or postpone an order for sale. The court must consider the welfare of children who:

• Currently occupy the property as their home, or
• Might reasonably be expected to occupy it as their home

"Welfare" is not defined in TOLATA itself, but the courts have interpreted it broadly to include:

(d) Interests of Any Secured Creditor

Where a mortgage lender has a charge over the property, their interests must also be considered. A lender pressing for sale because of mortgage arrears is a significant factor that may override children's welfare in some circumstances.

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How Children Affect Sale Decisions

Postponement of Sale

The most common outcome where children are involved is a postponement of the sale until the youngest child reaches 18 or completes full-time education. This mirrors the "Mesher order" approach familiar from divorce proceedings under the Matrimonial Causes Act 1973.

The Mesher-Type Approach in TOLATA

Practical Outcomes

In practice, where children are involved, the court may order:

1. Sale postponed until the youngest child reaches 18
2. Occupation regulated — the parent with primary care of the children may remain in the property
3. Outgoings allocated — one party may be required to pay the mortgage and/or other outgoings as a condition of continued occupation
4. Occupation rent — the party in occupation may be required to pay occupation rent to the other party to reflect their exclusive occupation
5. Liberty to apply — either party may return to court if circumstances change (e.g., the occupying party remarries or cohabits)

When Sale Is Ordered Despite Children

The court does not treat children's welfare as an absolute bar to sale. Sale may be ordered where:

• The property is heavily mortgaged and the debt is unsustainable
• The occupying party can rehouse the children with the proceeds of sale
• The children's needs can be adequately met in alternative accommodation
• The non-occupying party's financial circumstances require a sale (e.g., they need their share to house themselves)
• A long postponement would be unjust to the non-occupying beneficial owner

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Section 15 vs Schedule 1 Children Act

When children are involved in property disputes between unmarried parents, there are two potential routes: TOLATA and Schedule 1 of the Children Act 1989. Understanding when each applies is essential.

Comparison

When to Use Each Route

Key Case Law on Schedule 1

In Re P (Child: Financial Provision) [2003] EWCA Civ 837, the Court of Appeal confirmed that Schedule 1 orders are for the benefit of the child, not the parent. Property transferred under Schedule 1 typically reverts to the transferring parent when the child reaches 18.

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Key Case Law

Re Citro [1991] 1 Ch 142

The leading authority on section 15 factors (decided under the pre-TOLATA law but still authoritative). The Court of Appeal held that the purpose of a trust for a family home continues while the family needs a home, and children's presence is a significant factor against ordering an immediate sale.

However, the court also held that the interests of creditors in a bankruptcy case will normally prevail over children's welfare after one year. Nourse LJ stated:

"The voice of the children is not paramount. It is but one factor to be weighed in the balance."

Bank of Ireland Home Mortgages Ltd v Bell [2001] 2 FLR 809

This case concerned a section 14 application by a mortgagee for an order for sale. The Court of Appeal held that the interests of the secured creditor were a relevant factor under section 15(1)(d) and that the court must weigh them against the other section 15 factors, including the welfare of children in occupation.

The court ordered the sale despite the presence of a child, noting that the mortgage debt was substantial and the property would need to be sold eventually. The postponement sought would merely delay the inevitable while the debt increased.

Chun v Ho [2002] EWCA Civ 1075

An important case on the interaction between section 15 factors. The Court of Appeal held that the welfare of the child living in the property was a significant factor but not decisive. The court must conduct a balancing exercise, weighing all section 15 factors.

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The Unmarried Parents Dilemma

No MCA 1973 Protections

When married couples divorce, the court has wide powers under the Matrimonial Causes Act 1973 to redistribute assets, including property, to achieve a fair outcome. The court considers needs, contributions, the standard of living, and the welfare of children (which is the "first consideration" under MCA 1973 s.25(1)).

Unmarried parents have none of these protections. TOLATA determines existing property rights—it cannot create new ones. If an unmarried parent has no beneficial interest in the family home, TOLATA cannot give them one, regardless of their needs or the children's welfare.

The Statistics

The Gap in Protection

The practical consequence is stark. Consider two families:

This is the gap that the Law Commission's 2007 recommendations sought to fill, and which the government's announced consultation may eventually address.

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Practical Considerations

Housing Needs

Where children are involved in a TOLATA dispute, the court will want to understand the practical housing implications of any order. You should address:

• Where will the children live if the property is sold?
• Can the primary carer afford suitable alternative accommodation with their share of the proceeds?
• Is social housing available and what are the waiting times?
• What is the impact on the children's schooling, health, and wellbeing?

School Stability

The courts take seriously the disruption caused by forcing children to change schools. If children are settled in local schools and a sale would require a move to a different area, this is a factor that weighs against an immediate sale.

Temporary Arrangements

The court may fashion interim arrangements pending a final determination:

Long-Term Planning

If a postponement of sale is ordered until the youngest child reaches 18, both parties need to plan for the long term:

• The occupying party should maintain the property, pay the mortgage (if required), and keep it insured
• The non-occupying party may need to find alternative housing for years, funded by other means
• Both parties should consider whether occupation rent is appropriate and how outgoings will be divided
• Both parties should keep records of payments and expenditure, as these may affect the final division

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Preparing Your TOLATA Bundle When Children Are Involved

When children are a factor in your TOLATA claim, your bundle must address section 15(1)(c) directly. This means including evidence that goes beyond the standard financial and ownership documents.

Additional Evidence for Children's Cases

Bundle Structure for Children's Cases

Witness Statement Guidance

Your witness statement should include a dedicated section addressing:

1. The children — names, ages, schools, any special needs
2. Current living arrangements — who lives where, how long the children have been in the property
3. Impact of sale — what would happen to the children if the property were sold now
4. Alternative housing — what accommodation you could afford, where it would be, impact on schooling
5. The other party's position — where they could live, their housing needs
6. Proposed solution — what order you are asking the court to make and why it is in the children's interests

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Frequently Asked Questions

Is children's welfare the most important factor in a TOLATA case?

No. Unlike in Children Act proceedings (where the child's welfare is the "paramount" consideration), section 15(1)(c) of TOLATA makes children's welfare one of four factors the court must consider. The court conducts a balancing exercise, and the other factors—particularly the interests of secured creditors in bankruptcy cases—may outweigh children's welfare. As Nourse LJ stated in Re Citro: "The voice of the children is not paramount."

Can the court refuse to order a sale because children live in the property?

Yes. The court has full discretion under section 14 and may refuse to order a sale, postpone a sale, or order a sale with delayed completion. Where children are settled in the property and would be significantly disrupted by a sale, the court may postpone until the youngest child reaches 18. However, this is not automatic—the court weighs all section 15 factors.

Should I bring a TOLATA claim or a Schedule 1 Children Act application?

This depends on your circumstances. If you have a beneficial interest in the property, TOLATA allows you to enforce that interest. If you have no beneficial interest but need housing secured for your children, Schedule 1 of the Children Act 1989 is the appropriate route. In many cases, both may be relevant: TOLATA to establish your property interest and Schedule 1 to ensure the children's housing needs are met. Seek legal advice on the best approach for your specific situation.

What if the other parent wants to sell but I need the house for the children?

You can resist the sale by relying on section 15(1)(c) and demonstrating that the children's welfare requires them to remain in the property. You should provide evidence of the children's established life—their school, health services, social connections—and explain why a sale would be harmful. The court will weigh this against the other party's right to realise their share, but where children are well settled and would be significantly disrupted, a postponement of sale is a realistic outcome.

How long can a sale be postponed for children?

There is no statutory maximum, but the most common approach is to postpone until the youngest child reaches 18 or completes full-time secondary education. Some orders postpone until the child finishes A-levels (typically age 18-19). In exceptional cases—for example, where a child has severe disabilities—the postponement may be longer. The court retains the power to vary the order if circumstances change significantly.

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This article is for general information only and does not constitute legal advice. TOLATA claims involving children raise complex issues at the intersection of property law, trust law, and family law. You should seek independent legal advice before taking any action.

Sources:

• Trusts of Land and Appointment of Trustees Act 1996
• Children Act 1989, Schedule 1
• ONS Vital Statistics — Live Births 2021
• ONS Families and Households 2024
• National Audit Office — Children in Family Proceedings (May 2025)
• Resolution — Family Law
• Law Commission Report on Cohabitation (2007)
• Re Citro [1991] 1 Ch 142
• Bank of Ireland Home Mortgages Ltd v Bell [2001] 2 FLR 809
• Chun v Ho [2002] EWCA Civ 1075
• Re P (Child: Financial Provision) [2003] EWCA Civ 837

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