Emails And WhatsApp In TOLATA Proceedings: Digital Evidence In Property Disputes

The way we all communicate has evolved over time. Where once conversations happened face to face or by letter, now most discussions take place over WhatsApp, email or social media, no matter the topic.

This shift has serious implications for clients in court proceedings. When relationships break down and disputes over jointly owned property begin, those digital conversations can become some of the most powerful evidence used in court.

So what is TOLATA?

Trust of Land and Appointment of Trustees Act 1996 (“TOLATA”) is the primary legislation which governs disputes over jointly owned property in England and Wales. It is commonly used when unmarried couples separate and cannot agree on what share of a property each party owns or whether the property should be sold.

Unlike married couples who benefit from the court’s discretion under the Matrimonial Causes Act 1973, unmarried couples must rely on property and trust law to establish their respective interests. This means the court must determine what the parties actually intended when they acquired the property, and that intention must be proven by evidence.

This is where digital communication becomes crucial.

Why do WhatsApp and emails matter?

It is unlikely that everyone formally documents their property arrangements or sits down to write agreements about their beneficial ownership. However, we do talk constantly over WhatsApp and email to informally voice frustrations and concerns.

These communications have transformed TOLATA proceedings because they may provide evidence of:

• What the parties said to each other about the property;
• what they understood their respective shares to be;
• how their intentions may have changed over time.

The significance of these communications should not be underestimated. A casual message exchange between partners with no thought of future legal proceedings can ultimately determine the outcome of a property dispute.

A WhatsApp message sent at the time of purchase saying ‘obviously it’s yours if we split’ may carry significantly more weight in court than a written statement later trying to claim a beneficial interest.

What do the courts say?

The law of TOLATA is built around the concept of common intention, so focusing on what the parties agree, either expressly or impliedly, about how the property would be owned.

In Stack v Dowden [2007] UKHL 17, it was emphasised by Lady Hale that the court must look at the “whole course of dealing”’ between the parties, opening the door to digital communications as evidence. This follows the presumption that where a property is conveyed in joint names, equal beneficial ownership is established.

In Jones v Kernott [2011] UKSC 53, the Supreme Court confirmed that beneficial intentions can change over time. A series of WhatsApp messages exchanged over time may map the evolution of the parties’ intention and ultimately inform how the court should divide the property. The courts will look for express discussions about ownership, inferred common intention from conduct and imputed common intention where inference is not possible.

How are digital communications used in practice?

WhatsApp and email exchanges frequently contain discussions about financial contributions and arrangements which can directly support or undermine a claim to a beneficial interest.

For example:

• “I paid the deposit but we agreed it’s 50/50” – is likely to support a claim for an equal share.
• “You can live there but it’s still my house”– this may undermine a cohabitant’s ownership claim.
• “I’ll cover the mortgage this month, you can pay me back” – may suggest a loan rather than a contribution to beneficial interest.

As messages are written in the moment without any thought of litigation, they can be considered to be far more reliable than any recollections that may be shaped by the bitterness of the dispute. Therefore, the credibility of an individual may be affected if their later evidence contradicts statements they previously made in digital communication with the other party.

Increasingly, parties communicate not just by text but via voice notes and video messages, which may present evidential challenges as they must be transcribed, authenticated and the context carefully considered. However, they can be extremely useful as they capture tone and emotion in a way that text messages cannot. This makes it slightly easier to establish intention and hold the party accountable.

What about disclosure?

Following the Civil Procedure Rules, parties have to disclose digital communications / electronic documents if relevant to the issues in dispute. This includes:

• All relevant WhatsApp conversations in full.
• Email chains in their entire form.
• Confirmation of whether messages have been deleted and when.

With digital communications come challenges surrounding authenticity. Parties may allege that screenshots have been altered or that messages were sent by someone else. Courts may consider the data embedded in digital files, which can show when they were created and modified, as well as consistency with other communications. Importantly, WhatsApp backups stored on iCloud or Google Drive can be ordered to be produced, meaning deletion from a device does not necessarily mean the evidence is permanently lost.

What does this mean for everyone?

The rise of digital communication has fundamentally changed the use of TOLATA in legal proceedings. Courts once had to rely on individual witness recollections and inferences from conduct, but they can now access a record of evidence that captures what parties actually said, thought and intended about their property.

For legal professionals, this presents both opportunity and risk in the profession. Digital communications can be the most powerful evidence in a TOLATA dispute but can equally be the most damaging. Understanding how digital evidence is gathered, disclosed and assessed is an increasingly essential skill in navigating modern disputes.

For individuals, it serves as an important reminder that the conversations we have every day, sent without a second thought, may carry significant legal weight. Being mindful of how we communicate about shared property and finances is crucial in a time when our digital footprint follows us everywhere.

As we discovered during a seminar on this topic delivered by Barrister Luke Barnes of 3 Dr Johnson’s Chambers, the meeting of technology and property law is a fascinating area of modern legal practice that will only grow in importance as our digital lives become intertwined with our legal ones.