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TO SELL OR NOT TO SELL: THAT IS THE QUESTION THE IRONY OF THE TRUSTS OF LAND AND APPOINTMENT OF TRUSTEES ACT 1996

Published online by Cambridge University Press:  17 November 2011

Martin Dixon
Martin Dixon
Affiliation:
Reader in the Law of Real Property, Queens' College, Cambridge.
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Extract

The 1925 property statutes, particularly the Settled Land Act 1925 and the original sections 30 to 36 Law of Property Act 1925, were premised on a fairly narrow view of the prevalence and purpose of co-owned land. Successive interests either fell within the awkward provisions of the Settled Land Act 1925 or were organised under a trust for sale within the ambit of the Law of Property Act 1925. Concurrent co-ownership could exist, also under a trust for sale, but the Law of Property Act 1925 was premised on the assumption that such trusts would be expressly created, with readily identifiable beneficiaries, holding in defined shares, often for investment purposes and primarily in respect of larger land holdings. That is why the original scheme was a trust for sale, why sections 34 and 36 Law of Property Act 1925 appear not to contemplate the implied trust of land at all,1 why interests behind trusts originally were not regarded as proprietary,2 why statutory overreaching is so powerful and why sections 2 and 27 Law of Property Act 1925 stipulate a requirement of at least two trustees or a trust corporation before overreaching can occur.3 Concurrent co-ownership was, essentially, a financial not a residential matter, and the ready conversion of land to liquid asset was regular and expected. The position today is virtually the reverse, with concurrent co-ownership being the normal way by which the family home4 is owned and with the expectation that it will be retained as that home. Realisation of its capital value is intended to be postponed until the family's needs have changed.

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The Cambridge Law Journal , Volume 70 , Issue 3 , November 2011 , pp. 579 - 606
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Copyright © Cambridge Law Journal and Contributors 2011

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References

1 Prior to Bull v. Bull [1955] 1 Q.B. 234 it was not clear that implied co-ownership necessarily should give rise to a statutory trust for sale.

2 Although William & Glyn's Bank v. Boland [1981] A.C. 487 established that interests behind a trust for sale operated as interests in land, the doctrine of conversion was not abolished until Trusts of Land and Appointment of Trustees Act 1996, s. 3. This had consequences: e.g. Fautleroy v. Beebe [1911–13] All E.R. Rep. 782 and see also Perry v. Phoenix Assurance [1988] 1 W.L.R. 940.

3 It is commonly said that ss. 2 and 27 require two trustees, implying that the purpose behind these provisions was to safeguard against attempted overreaching by a single trustee. In fact, the single trustee of land was barely contemplated by the 1925 legislation because no practitioner would draft an express trust with a sole trustee, and implied trusts were almost unheard of. Two trustees were thus a “requirement” only in the sense that they were the norm. Indeed, originally it was more important to limit the maximum to four trustees – Law of Property Act 1925, ss. 34(2) and 36(1).

4 And also property held by small businesses, especially family concerns.

5 [1970] A.C. 777.

6 [1971] A.C. 88. Earlier examples tended to focus on establishing an interest in property on the basis of a strict purchase money resulting trust and few involved realty. Diwell v. Farnes [1959] 2 All E.R. is an example involving land.

7 Pettit and Gissing led to Lloyds Bank v. Rosset [1990] 1 All E.R. 1111 and the issue has been reopened by Stack v. Dowden [2007] UKHL 17, [2007] 2 A.C. 432, albeit in the context of quantification of shares. Jones v. Kernott [2010] EWCA Civ 578, [2010] 1 W.L.R. 2401, on the same issue, has been heard by the Supreme Court, but at the time of writing judgment has not been given.

8 William and Glyn's Bank v. Boland [1981] A.C. 487 and see Law Commission Report No. 115, The Implications of William & Glyn's Bank Ltd v. Boland, Cmnd. 8636 (1982).

9 City of London Building Society v. Flegg [1987] 3 All E.R. 435 and see Law Commission Report No. 188, Transfer of land, overreaching: beneficiaries in Occupation (1989).

10 Paddington Building Society v. Mendelsohn [1987] Fam. Law 121. See M. Dixon, “Consenting away proprietary rights”, E. Cooke (ed.) Modern Studies in Property Law vol. 2. (Hart 2003).

11 Royal Bank of Scotland v. Etridge (No 2) [2001] 4 All E.R. 449.

12 Abbey National Building Society v. Cann [1990] 1 All E.R. 1085.

13 In routine cases, conveyancers now advise in favour of a transfer into joint names. Baroness Hale's suggestion in Stack that it should be compulsory to complete the relevant panel on Land Registry transfer forms expressly declaring the nature of the equitable interests has much merit. It has not been adopted in the 2008 amendments to the Land Registration Rules, see Explanatory Memorandum to the Land Registration (Amendment) Rules 2008 at p.17, http://www.opsi.gov.uk/si/si2008/em/uksiem_20081919_en.pdf.

14 See M. Dixon, “Equitable Co-ownership: Proprietary Rights in Name Only?”, E. Cooke (ed.), Modern Studies in Property Law, vol. 4 (Hart 2007).

15 Only infrequently is legal title to residential property held by more than two trustees, although the same considerations apply should there be three or four trustees.

16 An equitable owner might seek the entry of a standard Form A restriction controlling the dispositive powers of a sole trustee unless and until a second trustee is appointed or the court makes an order under section 14 of the Trusts of Land and Appointment of Trustees Act 1996; see Land Registration Act 2002 s. 43(1)(c) and Land Registration Rules 2003, r93(a).

17 The Trusts of Land and Appointment of Trustees Act 1996 implemented the recommendations of Law Commission Report No. 181, Transfer of Land: Trusts of Land, and, in part, Report No. 188 Overreaching: Beneficiaries in Occupation. See R. Smith, “Trusts of Land Reform”, [1990] Conv. 12.

18 Both Bull and Boland recognised the essentially proprietary nature of the interest behind the trust for sale.

19 HL Deb. vol. 569 col. 1717 (1 March 1996).

20 Inserted by Trusts of Land and Appointment of Trustees Act 1996, Schedule 3.

21 Report No.181 paras. 121–12.10 and see original clause 6 of the Draft Bill.

22 Jones v. Challenger [1961] 1 Q.B. 176.

23 Report No.181, para. 3.5.

24 The nature of this trusteeship has never been examined at length judicially, although see Notting Hill Housing Trust v. Brackley [2001] EWCA Civ. 601, 82 P. & C.R. D48 and note S. Pascoe [2004] Conv. 370. It is more than a mere fig leaf – e.g. the trustees may be liable in breach to the equitable owners for disposing of the land contrary to the terms of the trust. Whether the beneficiaries may pursue personal remedies against a purchaser where property conditions are met (e.g. overreaching) is debateable, see M. Conaglen and A. Goymour, Chapter 5, in C. Mitchell, Constructive and Resulting Trusts (Hart 2010).

25 See Trusts of Land and Appointment of Trustees Act s. 12 (occupation) and s. 13 (rent).

26 [1995] N.P.C. 139.

27 The security was defective as a legal mortgage due to lack of consent by one of the legal owners, but it operated as charge over the genuinely consenting legal owner's equitable share: see Law of Property Act 1925, s. 63.

28 [2001] Ch. 743.

29 At 760. See also M. Oldham, “Balancing commercial and family interests under TLATA 1996, s.15” [2001] C.L.J. 43.

30 [2006] EWCA Civ. 535 at [63], [2006] H.L.R. 42.

31 [1998] 2 F.L.R. 769.

32 Barclays Bank v. Hendricks [1996] 1 F.L.R. 258.

33 Section 14 can be used in disputes unrelated to sale: for example, questions of possession and rent; questions of partition; questions as to the duties of the trustees. Applications requesting the court to determine the beneficial interest of a claimant may also be made under section 14 – e.g. Oxley v. Hiscock [2005] Fam. 211, [2004] 3 All E.R. 703 – but many of these disputes now fall to H.M. Adjudicator to the Land Registry as they arise in the context of an application to enter a restriction against the title of a sole legal owner requiring payment of monies to two trustees.

34 As amended by the Enterprise Act 2002.

35 Other solutions are possible. In Blackford v. Tate [2008] EWHC 693 (Q.B.), there was a successful application to transfer legal title absolutely to one of the existing co-owners and in Hopper v. Hopper [2008] 1 F.C.R. 557, the applicant was given a choice as to how to satisfy the other party's interest in the property.

36 See also Insolvency Act 1986, s. 336(4) for when matrimonial home rights arising under the Family Law Act 1996 are in issue. For property adjustment for separating married couples or civil partners see Matrimonial Causes Act 1973 and Civil Partnership Act 2004, Sch. 5; for provisions concerning children see Children Act 1989 Sch. 1 and, in general, the jurisdiction to make occupation orders under Part IV of the Family Law Act 1996.

37 The matters to which the court is to have regard in determining an application for an order for sale under s. 14 (save in cases of bankruptcy) include: the intentions of the person or persons (if any) who created the trust; the purposes for which the property subject to the trust is held; the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home; the interests of any secured creditor of any beneficiary; the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in property subject to the trust or (in case of dispute) of the majority according to the value of their combined interests.

38 Bankruptcy excepted, Insolvency Act 1986, s. 335A(3).

39 See above note 36. Where divorce or similar proceedings are imminent, it is usually appropriate to defer any application made under Trusts of Land and Appointment of Trustees Act s. 14 in favour of ancillary relief made in those proceedings. However, that does not mean that an order under s. 14 can never be made, especially if there is no arguable case against a sale, Smith v. Smith [2009] EWCA Civ 1297; [2010] 1 F.L.R. 1402.

40 But note that according to Trusts of Land and Appointment of Trustees Act 1996, s. 6, a trustee's powers as absolute owner is “for the purpose of exercising their functions as trustees”.

41 “Proprietary priority” is a handy description for the state of affairs where the property interest of one party enjoys priority over the property interest of another; for example, as provided for in sections 29 and 30 Land Registration Act 2002 concerning the impact of third party rights on registered disponees, or where a mortgagee is able to take possession and conduct a sale simply by reason of being a legal mortgagee with priority under a registered charge.

42 The reformulation “should clear the way for a genuinely broad and flexible approach” and the courts “will not be required to give preference to sale”, Law Commission Report No. 181, para.12.5 et seq.

43 For a view of s. 15 within an overall trusts framework see G. Ferris and E. Bramley, “The construction of sub-section 6(5) of the Trusts of Land and Appointment of Trustees Act 1996: when is a “right” not a “right“?” [2009] Conv. 1.

44 See above note 39.

45 See, e.g., S. Bright, “Occupation rents and the Trusts of Land and Appointment of Trustees Act 1996: from property to welfare?” [2009] Conv. 378.

46 [2002] EWCA Civ 1075, [2003] 1 F.L.R. 23. Although the freehold was held by a company, the sole shareholders were claimant and defendant and the dispute proceeded on the basis that it was a typical two party dispute.

47 Judgment para. 47, citing the judgment in the County Court. He also considered whether there should be an immediate clean break, the defendant's need to realise his share and the fact that the house was too large for sole occupancy.

48 [2007] EWCA Civ 877, [2008] 1 F.L.R. 1217.

49 [2006] EWCA Civ 1867, [2007] 2 F.L.R. 871.

50 2004 W.L. 3568131.

51 [2007] EWCA Civ 603, [2007] 2 F.L. 934.

52 [2003] EWCA Civ 924, [2004] 2 F.L.R. 321.

53 There were also issues as to the overlap between Trusts of Land and Appointment of Trustees Act and the jurisdiction under Schedule 1 of the Children Act 1989. See Z. Pabani, Fam. L. J. (2005) No. 51, 22.

54 At paras. 22 and 23. This might tend towards ordering a sale more frequently, because the “intention” may well be as to a joint home. However, it is only one factor and the cases do not indicate a presumption of sale in such cases.

55 See also Telecom Plus plc v. Hatch [2005] EWHC 1523, where sale was granted at the request of the registered proprietor against the wishes of a beneficiary in occupation subject to a short suspension to give time to make provision for children.

56 [1998] C.L.Y. 4876. The applicant had sought a sale to release him from potential mortgage liability in respect of a house in which he did not live and in which he had no beneficial interest.

57 See Olszanecki v. Hillocks [2002] EWHC 1997 (Ch) where the proven intention of one (now deceased) co-owner was to allow the other to remain in occupation and so sale was refused at the request of the deceased co-owner's heir.

58 [2001] EWCA Civ. 1543.

59 See also Swindale v. Forder [2007] EWCA Civ 29, [2007] 1 F.L.R. 1905 referring to previous proceedings where an application for sale by an intervenor in matrimonial proceedings was stayed while the property was still required as a family home.

60 Bank of Baroda v. Dhillon [1998] 1 F.L.R. 524 is a rare example of such an application under the Law of Property Act 1925, s. 30. For context see P. Omar, “Equitable interests and the secured creditor: determining priorities” [2006] Conv. 509.

61 Abbey National B.S. v. Cann [1991] A.C. 56.

62 City of London B.S. v. Flegg [1988] A.C. 54.

63 Saving a counter plea of undue influence, e.g. Alliance and Leicester plc v. Slayford [2001] 1 All E.R. (Comm) 1.

64 Paddington B.S. v. Mendelsohn (1985) 50 P. & C.R. 244.

65 Equity & Home Loans v. Prestridge [1992] 1 W.L.R. 137, but this might be better analysed as a case of subrogation, see M. Dixon, “Consenting Away Proprietary Rights” in E. Cooke (ed.) Modern Studies in Property Law, vol. 1 (Oxford 2001).

66 For example, that actual occupation did not exist, or that it was not discoverable, or not in respect of the land over which the interest existed or there was no disclosure when it was reasonable to disclose.

67 Land Registration Act 2002, s. 29. In the absence of overriding status, the equitable interest is not capable of protection by means of a unilateral or agreed notice, Land Registration Act 2002, s. 33(a).

68 Possession is not needed in order for a mortgagee to sell, Horsham Properties v. Beech [2008] EWHC 2327 (Ch), [2009] 1 W.L.R. 1255; S. Greer, [2009] Conv. 516. But the pool of willing buyers is limited and the Council of Mortgage Lenders has indicated that its members will not seek to sell or appoint a receiver in respect of owner-occupied residential property without first obtaining an order for possession, http://www.cml.org.uk/cml/policy/issues/4707.

69 Palk v. Mortgage Services Funding [1993] 2 W.L.R. 415 and see Dixon, M., “Combating the mortgagee's right to possession: new hope for the mortgagor in chains”, (1998) 18 Legal Studies 279CrossRefGoogle Scholar.

70 See below and, for example, Bank of Ireland Home Mortgages v. Bell (2001) 2 F.L.R. 809 and First National Bank v. Achampong [2003] EWCA Civ 487, [2003] 2 P. & C.R. DG11.

71 Thus the mortgagee must calculate carefully before applying for a forced sale, or else be happy with only partial satisfaction from the sale with the possibility of securing the balance through personal action against the mortgagor.

72 Or even, not to lend at all.

73 Interests arising after execution of the mortgage necessarily have no priority over the mortgage: see Cann.

74 While this raised the theoretical possibility that mortgagees might then have been bound by an undiscoverable interest, in reality such were rare, if indeed any existed at all. See M. Dixon, “The reform of property law and the Land Registration Act 2002: a risk assessment”, [2003] Conv. 136.

75 Land Registration Act 2002, Schedule 3, para. 2. And also that the purchaser did not know of the interest.

76 Link Lending v. Hussein [2010] EWCA Civ. 424, [2010] 2 P. & C.R. DG15; Thomas v. Clydesdale Bank [2010] EWHC 2755 (Q.B.), (2010) NPC 107.

77 It might be enough to justify sale if the equitable owner's share is small. But, if we can have ransom strips, why not ransom equitable interests, especially where this would preserve possession which the small amount of money could not replace?

78 Currently, there appears to be no case law on the “reasonableness” of disclosure under Land Registration Act 2002, Schedule 3, para. 2.

79 [2001] 2 All E.R. (Comm) 920.

80 [2001] 3 W.L.R. 639.

81 [2003] EWCA Civ 487; [2003] 2 P. & C.R. DG11.

82 [2010] EWHC 652 (Ch).

83 [2010] EWCA Civ 312, [2010] 2 F.L.R. 177.

84 But see below note 85.

85 Even in the absence of express consent, mortgagee priority may be achieved on the basis of implied consent – where the equitable owner participated in the attainment of the mortgage to such an extent that she cannot later set up her interest against it – or by reason of subrogation. Subrogation is not necessarily denied merely because the lender may have been negligent in securing priority, Anfield (UK) v. Bank of Scotland [2010] EWHC 2374 (Ch), [2011] 1 All E.R. 708.

86 [2001] C.P. Rep. 52.

87 Achampong makes it clear – correctly in the author's view – that innocent legal owners compromised in the first situation do not need to rely on an overriding interest because they are protected by reason of their status as proprietor. Further, it is arguable, in the light of section 58 Land Registration Act 2002, that in relation to registered land, there is a valid legal charge, at least until the register is rectified by removing it, rather than the mortgagee defaulting to an equitable chargee. But such a charge, even if valid, would not overreach, HSBC v. Dyche [2009] EWHC 2954 (Ch).

88 Judgment at [31].

89 Judgment at [26].

90 Neither was it relevant that the Bank might actually have had an equitable charge in priority to the interest of Mr and Mrs Bell, although the Court of Appeal are not certain this was a correct analysis of the facts. See also R. Probert, “Creditors and section 15 of the Trusts of Land and Appointment of Trustees Act 1996: first among equals?” [2002] Conv. 61.

91 The Court of Appeal would not “condemn the bank to wait”, because “it a plain that an order for sale should be made”, Achampong at [62], [65].

92 Edwards, at [35], [36].

93 As in Bell itself. In Hewett, the issue of sale under s. 14 was remitted to the trial judge after the claim of undue influence in respect of the legal charge was upheld.

94 Under a charging order, the debt is secured purely as a means of enforcement, whereas in a mortgage the debt is secured on land by design.

95 If the land is not co-owned at all, the chargee may apply for an order for sale under CPR r. 73.10(1). If the charging order is against all legal and beneficial owners, then although an application under section 14 Trusts of Land and Appointment of Trustees Act is not required, the court should apply the same factors as if it was made under that Act, even though it is made under CPR r. 73.10(1): Close Invoice Finance Ltd v. Pile [2008] EWHC 1580 (Ch), [2009] 1 F.L.R. 873.

96 This appears to be the case whether or not the land is co-owned because loss of a home is regarded as a disproportionate response to the enforcement of small debts and so the charging order will be protected by an entry on the register of title until sale or otherwise satisfied.

97 Barclays Bank v. Hendricks [1996)] 1 F.L.R. 258.

98 Lloyds Bank v. Byrne [1991] 1 F.L.R. 369.

99 The analogy was rejected in a bankruptcy case, Everitt v. Budhram, [2009] EWHC 1219 (Ch), [2010] Ch. 170.

100 [2004] EWHC 1908 (Ch).

101 Judgment at [60].

102 The co-owned property was leasehold and liable to be forfeited for non-payment of service charges. A sale would at least realise some capital for the non-debtor. It is unclear how significant this factor was, but it may have carried great weight and gives the case a different colour.

103 [2004] EWHC 3316 (Ch).

104 Judgment at [22], [24].

105 [2009] EWHC 317 (Ch).

106 Judgment at [36].

107 Judgment at [37].

108 A spouse who took no benefit from the contracted debt might be thought more deserving of protection than one who did, or who played some part in the racking up of the debt.

109 [2008] EWHC 1580 (Ch). See also Hameed v. Qayum [2009] EWCA Civ. 352, [2009] 2 F.L.R. 962.

110 In fact, he thought it “quite senseless” that the Trusts of Land and Appointment of Trustees Act should not be involved simply because of the accident that both co-owners were debtors, especially when the land was occupied (as here) by others – children and an elderly parent.

111 [2010] EWHC 554 (Ch), [2010] 2 F.L.R. 362.

112 Impending school examinations and treatment at the local hospital. Also, that one child used the swimming pool at the property as part of her training as an elite swimmer.

113 Approving Close and Putnam.

114 Judgment at [63].

115 The interests of the bankrupt's creditor and, in the case of dwellings, the conduct of the spouse, civil partner, former spouse or former civil partner, so far as contributing to the bankruptcy; the needs and financial resources of the spouse, civil partner,former spouse or former civil partner; the needs of any children; all the circumstances of the case, other than the needs of the bankrupt.

116 Insolvency Act 1986, s. 335A(3). See also P. Omar, “Security over co-owned property and the creditor's paramount status in recovery proceedings”, [2006] Conv. 157.

117 [2004] EWHC 3315 (Ch), [2006] 1 F.L.R. 725. See also Harrington v. Bennett [2000] B.P.I.R. 630.

118 [2009] 1 F.L.R. 74.

119 Re Raval (a Bankrupt) [1998] B.P.I.R. 389. See also Hosking v. Michaelides [2006] B.P.I.R. 1192 applying Insolvency Act 1986 s. 336 and Re Hamid Dehdashti Haghighat (A Bankrupt) [2009] EWHC 90 (Ch), [2009)] 1 F.L.R. 1271.

120 Claughton v. Charalambous [1998] B.P.I.R. 558.

121 Re Karia [2006] B.P.I.R. 1226.

122 Hosking at p. 19, adopting the definition from R v. Sandford [2000] 1 Q.B. 198 (in another context).

123 Section 336 Insolvency Act 1986 applies if the land is solely owned by the bankrupt and a spouse or civil partner has occupation rights under the Family Law Act 1996; section 337 applies where the property was owned by the bankrupt and occupied by him as a home with a person under 18 years. The interpretation of “exceptional circumstances” in these provisions is regarded as identical, Hosking v. Michaelides [2006] B.P.I.R. 1192, Everitt v. Budhram. See also Martin-Sklan v. White [2006] EWHC 3313 (Ch).

124 Insolvency (Northern Ireland) Order 1989, Art 309(3)–(5). See The Official Receiver for Northern Ireland v. Rooney and Paulson [2009] B.P.I.R. 536. For further comparison see U. Woods, “Property disputes between co-owning cohabitees – Ireland and England compared”. [2006] C.L.W.R. 297.

125 There needs to an element of extremity, not merely an ongoing condition, Barca v. Mears (health problems of child not exceptional).

126 [2006] EWHC 1255 (Ch); [2007] 1 F.L.R. 744.

127 [2009] EWHC 1219 (Ch), [2010] Ch. 170.

128 See also Re Bremner [1999] B.P.I.R. 185 (terminal illness), Hosking v. Michaelides and Re Haghighat (both mental illness), all cases under Insolvency Act 1986, s. 336.

129 [1997] B.P.I.R. 470.

130 [1998] B.P.I.R. 558.

131 See also Harrington v. Bennett. Conversely, the fact that the creditors might still be paid in full even if there was a delay in sale is not exceptional – Donohoe v. Ingram [2006] EWHC 282 (Ch), [2006] 2 F.L.R 1084.

132 Applying equivalent provisions in Northern Ireland.

133 Note, that the provisions of the Enterprise Act 2000 are likely to render questions of delay otiose.

134 [2006] B.P.I.R.1.

135 For a full account see A. Baker, “The judicial approach to ‘exceptional circumstances’ in bankruptcy: the impact of the Human Rights Act 1998” [2010] Conv. 352.

136 [2004] EWHC 2170 (Ch), [2005] BPIR 15.

137 See also Donohoe; Jackson v. Bell [2001] B.P.I.R. 612.

138 [2006] EWHC 1255 (Ch); [2007] 1 F.L.R. 744.

139 [2007] B.P.I.R. 24.

140 At [16].

141 A matter expressly reserved in Pinnock, [2010] UKSC 45 at [50]. See also Mayor and Burgess of the London Borough of Hounslow v. Powell; Leeds City Council v. Hall; Birmingham City Council v. Frisby [2011] UKSC 8, [2011] 2 W.L.R. 287.

142 See, for example, Lord Nicholls in Etridge at [34].

143 Section 15 of the Trusts of Land and Appointment of Trustees Act 1996 refers to the interests of any secured creditor of any beneficiary, but does not, in contrast to the Insolvency Act 1986, s. 335A, stipulate that preference should be given to those interests.

144 Trusts of Land and Appointment of Trustees Act 1996, s. 3.

145 For a broader look at the relationship between property and debt, see Fox, L., “Creditors and the concept of ‘family home’: a functional analysis”, (2005) 25 L.S. 201Google Scholar.