13. Regulating Co-ownership: The Content Question

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the internal regulation of co-ownership. It is concerned with the content question: the rights enjoyed by co-owners, including their rights and duties in relation to each other, and whether one co-owner can insist on a sale of the land against the wishes of another. The joint tenancy and the tenancy in common are two forms of co-ownership. The chapter explores the operation of survivorship in respect of a joint tenancy and the process through which a joint tenant may become a tenant in common through severance. Co-ownership is terminated once there is a sole legal and equitable owner. The process of partition can also terminate co-ownership. In both forms of co-ownership, the rights and duties of the co-owners are governed through the imposition of a trust of land, regulated by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). TOLATA 1996 contains a procedure enabling disputes relating to land held on trust to be determined by an application to court. The chapter considers how the courts have resolved disputes between the beneficiaries as to whether land should be sold. The chapter also considers the relationship between TOLATA 1996 and ‘home rights’ (of occupation) conferred by the Family Law Act 1996.

11. Trusts

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter describes how trusts may arise in relation to land, providing an overview of key situations in which a party may acquire an equitable interests under a trust of land. It considers express, resulting, and constructive trusts of land. A resulting trust can arise in favour of A, where A purchases or contributes to the purchase of land held by B, or in some cases where A transfers land to B without receiving anything in return. Constructive trusts arise in a number of diverse circumstances in which it can be said that it would be unconscionable for the legal owner to assert his or her own beneficial ownership and to deny the beneficial interest of another. They may arise, for example, under the doctrine in Rochefoucauld v Boustead and the Pallant v Morgan equity. The doctrine in Rochefoucauld v Boustead imposes a constructive trust to prevent a transferee of land from fraudulently relying on the absence of compliance with formalities to deny a trust pursuant to which the land was transferred. The Pallant v Morgan constructive trust can arise where one party acquires land pursuant to an informal commercial joint venture and reneges on an agreement that another party will have an interest in the land. The trust has been categorized as a form of ‘common intention constructive trust’ but this categorization is contentious.

10. Trustee appointments

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. No more than four trustees can be appointed in a private trust of land. The trustees will hold the legal title as joint tenants; if any of them dies, the legal title remains vested in the surviving trustees by ‘right of survivorship’. This chapter examines trustee appointments, focusing on cases where a trustee dies or for some other reason ceases to act, and also considers the persons able to appoint trustees and the persons able to act as trustees. The chapter provides an overview of the Trustee Act 1925, and the Trusts of Land and Appointment of Trustees Act 1996. It also considers the principle that a trust does not fail for want of a trustee, how a trustee may disclaim the trust and the modes by which a trustee might retire, or be removed, from the trust. In addition, the chapter looks at the actions of the trustee upon appointment, liability after retirement from the trust, removal under ss 36(1) and 41 of the Trustee Act 1925 and removal of the trustee under the court’s inherent jurisdiction.

Joint Ownership of Land

The chapter examines the law that manages joint ownership using the structure known as the ‘trust of land’. It begins by introducing the different circumstances in which joint ownership can arise (family, business, or succession), and the distinction between joint tenancy and tenancy in common, and how to tell them apart. It then looks at the ways in which a joint tenancy can be severed. The chapter explains the provisions of the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) which governs the operation of the trust of land. Dispute resolution and bankruptcy are considered. The chapter concludes with a look at the conflict of static versus dynamic security in land law, and discusses the use of restrictions to protect unregistered ownership interests in land.

9. Trusts of land

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses trusts of land. The creation of concurrent interests in land generally now occurs by way of a trust of land, governed by the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) and replacing their forerunner, trusts for sale. Trusts of land may be expressly or impliedly created and, where implied, may be resulting or constructive trusts. Key provisions of TLATA 1996 include: ss 6–8 governing the extent of trustees’ powers over the trust property; s 11 governing the circumstances in which trustees have a duty to consult beneficiaries when exercising their powers; ss 12–13 governing the rights of beneficiaries to occupy the trust property; and ss 14–15 governing the right of an interested party to make an application to the court for an order to resolve a dispute over trust land.

10. Co-ownership

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the co-ownership of property. Co-owned property is where two or more people are entitled to possess and enjoy the property at the same time. Today, there are two types of co-ownership: a joint tenancy and a tenancy in common. Co-owned property is held on trust and, since the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) this is generally a trust of land. Legal title can only be held as a joint tenancy, by a maximum of four people. Equitable title can be held as a joint tenancy or a tenancy in common by an unlimited number of people. A joint tenancy in equity, but not at law, can be severed to create a tenancy in common. Disputes between co-owners may be dealt with by making an application to court. Where a co-owner becomes bankrupt, the trustee in bankruptcy must make an application to court to request a sale of the co-owned property.

13. Express and implied trusts

Course-focused and comprehensive, the Textbook on Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter provides an outline of certain matters relating to trusts of land. It covers the separation of title and enjoyment; express and implied trusts; statutory trusts; and the pre-1997 methods of creating settlements of land, which are now replaced by the new trust of land under the Trusts of Land and Appointment of Trustees Act 1996. In addition, the chapter includes a more detailed account of resulting and constructive trusts.

14. Trusts of land

Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter begins by discussing changes introduced by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). The operation of the new trust of land is regulated by Part 1 of TOLATA 1996, and the rest of the chapter deals with these provisions. These are illustrated by reference to: Mary Brown, the owner of 10 Trant Way, who needs advice about creating a settlement in her will; and six students who hold 8 Trant Way as co-owners, and are therefore subject to a statutory trust of land. Three special dispositions which would previously have created Settled Land Act settlements but now give rise to trusts of land are also identified.

11. Trusts of land

This chapter focuses on what the law requires of trustees of land and how it protects the beneficiaries of those trusts. All trusts of land are now governed by the statutory framework set out in the Trusts of Land and Appointment of Trustees Act 1996. The Act sets out the rights and responsibilities of trustees, and the rights of beneficiaries, under a trust of land. Trustees have extensive powers over the land, but have a duty to act in the interests of the beneficiaries, to consult them, and to give effect to their wishes where possible. The beneficiaries (with an interest in possession) have a right to occupy the land, although the trustees have the power, under certain circumstances, to restrict or exclude them from occupation. The chapter also discusses the powers of the court under TOLATA 1996, cases of bankruptcy, and the Settled Land Act 1925.

16. Co-Ownership

This chapter studies the trust of land, and how this legal structure is used to manage co-ownership of land. It first describes the nature of interests under a trust of land, and the rights and obligations for trustees and beneficiaries which arise as a result of the creation of such a trust. The chapter then details the different forms of concurrent co-ownership which can exist in relation to land, looking at joint tenancies and tenancy in common as well as the process of severance. Since co-ownership cannot exist without a trust, it is useful to have understood trusts generally before examining it as a tool to manage co-ownership situations. Finally, the chapter assesses the regulation of disputes between trustees, beneficiaries, and third parties. Partly these disputes relate to questions of priority, and so it is useful to read this chapter in conjunction with the previous one concerning the general priority rules.