Co-Ownership Disputes

Question 1

4-step analysis.

Answer 1

1. Is there overreaching?
2. Who has priority?
3. If L has no priority, discuss S.14 TOLATA.
4. If S.14 TOLATA looks dubious, discuss L making B bankrupt (Slayford + S.335A Insolvency Act).

Question 2

Flegg

Answer 2

Overreaching under S.2 of the LPA 1925 gives L a prior right to possession when Ts default on the mortgage

Question 3

Sabherwal (2 points)

Answer 3

1. B’s interest must be capable of being overreached, and it is not so capable if it consists of an equitable interest enjoyed by B, an adjoining owner over the land itself independently of who owns the land at the time (i.e. easement, covenant etc)
2. TOLATA has not affected overreaching under LPA/Flegg

Question 4

Coleman

Answer 4

The court refused to grant an order to B that Ts must seek his consent before a sale or mortgage, noting that this would destroy the concept of overreaching.

Question 5

2 ways a settlor can prevent overreaching. Conclusive?

Answer 5

S.8 TOLATA allows a settlor to restrict trustee’s powers under S.6/7.
1. Enter a Restriction to prevent a single trustee from appointing a second trustee w/o the consent of the equitable owner
2. Enter a Restriction against dealings w/o the consent of the equitable owner.
Not conclusive - Ts can apply under S.14 to remove such consent requirements.