CO-OWNERSHIP - TLATA 1996

Question 1

Which Act regulates the powers and statutory duties of Trustees?

Answer 1

Trust in Land and Appointment of Trustees Act 1996 (TLATA 1996)

Question 2

What does s1 of TLATA 1996 say?

Answer 2

Under s1, co-ownership sets up a trust in land

Question 3

What are the powers of Trustees under TLATA 1996?

Answer 3

Under s6, Trustees have all the powers of an absolute owner (can sell, mortgage or lease property)

Question 4

Requirements for s6 TLATA 1996 to apply?

Answer 4

For s6 to be effective,
- Under s10, consent among the trustees is required
- Under s11, there is the need to consult all the beneficiaries of age,
(i) so far as practicable
(ii) so far as it is consistent with the general interest of the trust (e.g, why the property was bought)

Question 5

Can a trustee be removed?

Answer 5

Under s19 TLATA 1996, a trustee may be removed by the beneficiaries, if
(i) all the beneficiaries agree
(ii) the beneficiaries are of age

A trustee may retire by deed - provided 2 or more trustees remain

Under s41(1) of the Trustees Act 1925, the court may appoint or substitute a trustee, ‘whenever it is expedient’

Question 6

What are the right of Beneficiaries under the TLATA 1996?

Answer 6

S12 of TLATA 1996 gives beneficiaries the right to occupy the land

However, under s13, the Trustees can exclude some beneficiaries, provided:
- not all of the beneficiaries
- the beneficiary in occupation may be required to pay outgoings or rent as compensation to the excluded beneficiary
CASE LAW: Rodway v Landy
It was held that the surgery was a tenancy in common in equity, and therefore, the property was divided (run as two separate practices) + the restricted each other under s13

Under s11(1), the trustees have to consult the all beneficiaries of age, so as to give effect to the majority wish

Question 7

What happens if there is a dispute about the property?

Answer 7

Under s14(2)(a) of the TLATA 1996, a beneficiary can compel a trustee to exercise his powers of an absolute owner so as to sell the property, by making an application to the court

Under s 14(2)(b), the beneficiaries can ask for a declaration from the court as to the extent of their beneficial interest

However, since as per s1 co-ownership sets up a trust in land, no presumption of sale, and under s4 TLATA 1996, the trustees can postpone sale.

Question 8

s30 LPA 1925 application cases?

Answer 8

Abbey National - the sale order under s30 was not granted as there was a collateral purpose, to provide Mrs. M with a home during her lifetime

Re Buchanan-Wollaston’s Conveyance - 4 owners for sea view so owned a property. After some time they fell out, and made a s30 application to sell the property.
The application failed as it would undermine the purpose of the trust

Jones v Challenger
Bought a property as matrimonial home
Divorced after some time
Application under s30 was allowed as collateral purpose ended

Re Evers’ Trust - sale order postponed
M & W purchase house to live in with their child and W’s 2 children from an earlier marriage
M leaves - wants sale of house
Court refuses to order sale until youngest child is 16 – purpose still subsisting

Question 9

S15 TLATA 1996 - Matters relevant in determining applications

Answer 9

s.15(1)
(a) The intentions of the persons who created the trust;
(b) the purposes for which the property is held;
(c) the welfare of any minor who occupies or might reasonably be expected to occupy the land as his home
(d) the interests of any secured creditor

s.15(3)
Circumstances and wishes of beneficiaries of full age, having regard to the majority in terms of value