TOLATA 1996 :) Flashcards
What does TOLATA stand for?
The Trusts of Land and Appointment of Trustees Act 1996.
What is the law of co-ownership?
The law of co-ownership is a product of statute and the common law.
Which statutes are of particlar importance in relation to TOLATA and why?
The Law of Property Act 1925 and
The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) are particularly important, with the latter amending significantly the original co-ownership scheme of the 1925 legislation.
Why was the original legislative scheme was altered by TOLATA?
- Social and economic changes also have had a great impact on the frequency with which co-ownership arises and the consequences it brings.
- It is no longer true that co-ownership is limited to large country estates or to land held for investment purposes.
- Neither is it true that co-ownership can arise only on a deliberate conveyance of land to two or more people.
- The implied creation of co-ownership of land – including the acquisition of ownership rights by means other than a formal conveyance – is a relatively recent phenomenon and an even more common claim.
- As we shall see, much of the law of co-ownership today concerns the rights and responsibilities of the co-owners of the family home and the way in which they interact with banks, building societies and other purchasers.
- This is why the original legislative scheme was altered by TOLATA – in recognition of the broadening of the reach of co-ownership away from purely commercial or investment land towards residential property.
What is concurrent ownership in property?
Concurrent co-ownership of property describes the simultaneous enjoyment of land by two or more persons.
It is important to remember that we are concerned here with the simultaneous enjoyment of property: that is, enjoyment of the rights of ownership by two or more persons at the same time.
Thus, what is a concurrent interest?
Concurrent interests are essentially people with an interest behind a trust.
In very broad terms, what does TOLATA concern?
- Here, we are talking about heartbreak, where couples separate.
- During relationship breakdowns, they are quite fractious.
- In land, TOLATA regulates this area of the splitting of couples.
- TOLATA regulates if a house or a home (depending on your stance), an asset or if this sale can be postponed allowing children to continue living in the property.
- TOLATA regulates what happens to property when couples separate.
The ‘old law’.
The ‘old law’.
In relation to TOLATA, what was the old law?
Law of Property Act 1925.
Specifically, what section of the Law of Property Act 1925 is of relevance?
Section 30 of the Law of Property Act 1925.
What did Section 30 of the Law of Property Act 1925 provide?
‘If the trustees for sale refuse to sell… any person interested may apply to the court for a vesting or other order… and the court may make such order as it thinks fit’.
What does this provison indicate?
- This section indicates the beginning of judicial discretion in order to facilitate a sale.
- ‘Any person interested’ could apply to the court for a vesting a child? A creditor?
Through the relevant case law in this element of the course, what is the main debate?
Is propety an asset or is property to be considered a home.
How did Section 30 of the Law of Property Act 1925 treat property.
As more of an asset as opposed to a home.
Pre 1996, what was the priority regarding land and co-ownership?
Up to 1996 the overwhelming majority (75% of cases) – the judges did force sales.
They saw homes as assets.
Creditor dominance at this stage.
Free alienation and transferability of importance.
Which case is an interesting consideration in regard to the old law?
Re Buchanan - Wollaston’s Conveyance [1939].
What occured in Re Buchanan- Wollaston’s Conveyance [1939]?
The court, despite the presumption of sale under the old law, refused to grant an order for sale under Section 30 of the Law of Property Act 1925 (LPA 1925) where the agreed purpose of the land purchase could still be carried out.
In this case, what did Lord Green decide the teask for the court to be in such cases?
Lord Greene, the task for the court is to decide, ‘whether or not the person applying for execution of the trust for sale is a person whose voice should be allowed to prevail’.
Who would the person applying for execution of the trust for sale include?
This could include creditors trying to force a sale to get their hands on a property.
Sir Greene MR emphasised that circumstances might change in the future for example under what circumstances?
For example, if all the parties have died, and the court would not prevent a sale at that point.
The court must assess whether the person applying for the execution of the trust for sale is someone whose voice should be allowed to prevail, in this case, why could there not be an order for sale in this case?
In this specific case, the court would not permit the voice of the individual who was in breach of his obligation to prevail.
If this case were to arise today under the Trusts of Land and Appointment of Trustees Act 1996, what would likely occur?
f this case were to arise today under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA), there is an expectation that the court would likely refuse an order of sale. Under Section 15(1)(b) of TLATA, the court is required to consider the purposes for which the property subject to the trust is held. In situations where the agreed-upon purpose, such as keeping the land as an open space, is still feasible, the court may be inclined to preserve that purpose rather than order a sale.
What view would this outcome align with?
This aligns with the modern legal framework that places a strong emphasis on the intentions and purposes of the parties involved in co-ownership arrangements.
In the majority of cases, we know judges would often force a sale.
There is however one exceptional case, what is it?
Stevens v Hutchinson [1953] Ch 299.
What occured in Stevens v Hutchinson [1953] Ch 299?
- This was a bankruptcy case which involved an application for an order for sale pursuant to s.30 LPA 1925
(the relevant statute at the time - now replaced by TOLATA s.14 and s.15). - Stevens featured a bankrupt husband who was referred to by Upjohn, J as a “ne-er-do-well and a waster” and a “spendthrift”.
Was an oder of sale under S30 LPA granted and why?
The order for sale was not granted by Upjohn, J partly because the creditor was not a “person interested” for the purposes of s.30 LPA 1925.
What were the consequences of this decision?
As a result the wife and their three children were able to stay in the matrimonial home.
What did Lord UpJohn declare in the obiter dicta of this judgement which was interesting?
I should, however, add this: that, even if the plaintiff established that he had an interest in the land, I can see no reason why, in the circumstances of this case, he should obtain an order for the sale of the land. I do not propose to refer in any way to the evidence, but this much is clear: that both the plaintiff and the second defendant have suffered from the first defendant, the husband, who has treated the plaintiff very badly and who appears to have treated his wife extremely badly for many years. He is a ne’er-do-well and a waster, but this is the matrimonial home and the wife who is in equity owner of half the house is living there. Her husband appears to live there occasionally, though at the present time he is not. The receiver can have no higher rights than the husband and I can see no ground on which it would be right or proper for the court to order a sale of the property in order that the judgment creditor may be satisfied.
What is the new law?
The Trusts of Land and Appointment of Trustees 1996.
Essentially, what is the understanding behind this statement?
‘Even if I was able to order a sale, I wouldn’t because of the effects on Mrs Hutchinson and her children’.
What does S1 TOLATA do?
Governs Trusts of Land.
A replacement of the trust for sale.
Why did such reform occur?
Law commission document below responsible for the change in thought away from the trust for sale toward the trust for land.
What was the name of the relevant law comission report?
Transfer of Land: Trusts of Land, 1989, Law Com No.181
What did this law comission report indicate?
‘In this report the Law Commission, as part of its programme for the simplification of
conveyancing, makes recommendations as to the reform of the law relating to trusts of
We consider that the present dual system of trusts for sale and strict settlements is
unnecessarily complex, ill-suited to the conditions of modern property ownership, and
liable to give rise to unforeseen conveyancing complications. We propose that it should
be replaced by an entirely new system, applicable to all trusts of land’.
What were the two main problems outlines in the law comission report?
- Firstly, the current system is unnecessarily complicated.
- The trust for sale mechanisms are not appropriate to the conditions of modern home ownership.
What was the other potnetial influence upon TOLATA?
The other reason they actuated reform – the insolvency act 1986.
This act introduced a range of discretion to deal with these issues through the lenses of a bankrupt person.
