Solicitors Qualifying Examination

Co-ownership of Land | Land Law – SQE1 & SQE2 Exam

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Co-ownership of Land
Successive co-ownership (‘settlements’)
• Parties entitled to ownership of a freehold in chronological succession
o E.g. A holds life estate in freehold; on death of A, B is entitled to life estate; on
death of B, C entitled to the fee simple in remainder
Concurrent co-ownership
• Concurrent co-ownership occurs where two or more persons own the
same estate in a piece of land at the same time.
Historical position: Trusts for Sale (for information only)
• LPA 1925 imposed trust for sale whenever land was expressly conveyed / left by will to
more than one person (ss 34(2), (3) and 36 LPA 1925)
• Ownership of the bare legal title imposes duties and powers of management, but no
benefit
• Trusts for sale could be express or imposed by statute (e.g. LPA 1925 s34)
• Land conveyed (for investment purposes) to trustees, who were under a duty to sell and
reinvest, although with the discretion to postpone the sale
• Overriding duty = sell
o Law leant in favour of sale in case of dispute
o As equity looks on that as done which ought to be done, equity viewed the sale
as having already taken place = Bs have interest in proceeds of sale, not land, so
by the doctrine of conversion, Bs did not have a right to occupy
o As property was increasingly bought as a home, trustees postponed sale
indefinitely, making a mockery of the ‘trust for sale’
• To reflect that land was now increasingly retained by domestic owners (rather than
sold), trusts for sale were abolished and replaced by the Trusts of Land and
Appointment of Trustees Act 1996 (TLATA 1996)
• Trusts for sale at 1st Jan 1997 converted to trusts of land (TLATA 1996, s 1(2)(b))
• Provisions preventing trustees from postponing sale are invalidated (s 4 TLATA
1996)
• Where previously statutory trusts for sale imposed, now a trust of land without a duty
to sell is imposed (s 5 and Sch 2 TLATA 1996)
• Doctrine of conversion abolished (s 3 TLATA 1996)
© Liam Porritt 2020 2
Problem question introduction
1. Concurrent co-ownership occurs where two or more persons own the
same estate in a piece of land at the same time, as is the case here.
2. There must be unity of possession (i.e. each co-owner is simultaneously
entitled to possession of the whole land).
3. Where land is conveyed to more than one person, a trust will be imposed
on such persons to hold the land for the benefit of those interested in the
land (s 34(2) LPA 1925). This trust, consisting of land, will be a trust of
land under s 1(1)(a) TLATA 1996.
4. We first consider chronologically the status of the legal and equitable
titles to [land], before considering the powers and obligations of the
trustees as regards the dispute as to the sale / effect of X’s bankruptcy
and the powers and obligations of the trustee in bankruptcy.
Trusts of Land
• S 1(2)(a) TLATA 1996 – TLATA applies to all types of trust of land whenever created,
except strict settlements existing before Jan 1997
• S 1(2)(a) TLATA 1996 – bare trusts included as ‘trusts of land’
Initial Purchase
Legal Title
1. Where legal title is held by more than one person, legal title must be held
by way of a joint tenancy (LPA 1925, s 1(6)).
2. Joint tenants together are deemed to constitute a single legal entity.
3. Although they may have separate rights between themselves, as against
others they are in the position of a unitary body.
4. There can be no severance of the legal joint tenancy so as to convert the
joint tenancy into a tenancy in common (LPA 1925, s 36(2)).
5. The maximum number of legal owners is 4 (Trustee Act 1925, s 34(2)).
o Where more than four people are listed, the first four will be the
legal title holders (TA 1925, s 34(2)), provided they are of sound
mind (LPA 1925, s 22) and of age (LPA 1925, s 20), the age of
majority being 18 (s 1 Family Law (Reform) Act 1969).
Equitable Interests
• The equitable interest in the land can be held either as a joint tenancy
(see above) or as a tenancy in common.
o Under a tenancy in common, each co-owner is regarded as having
a notional undivided share in the land
o There is no right of survivorship and so the deceased’s share will
pass under his will or by the rules of intestacy
© Liam Porritt 2020 3
Presumption – unequal contributions to purchase monies + partnership
asset
• If purchase money is provided in unequal shares, purchasers are
presumed to take as tenants in common in equity in proportion to their
respective contributions (Bull v Bull)
o However, the presumption in a domestic context is now that there
is a joint tenancy (Stack v Dowden), as ‘equity follows the law’.
• If the land is held as a partnership asset, the presumption will be that
there is a tenancy in common, as the right of survivorship has no place in
business (Lake v Craddock).
Rebuttal – express declaration or words of severance
• However, an express declaration of trust will be definitive if the four
unities are present along with formalities, i.e. signed writing by the
settlors (s 53(1)(b) LPA 1925) (Pink v Lawrence).
• In the absence of express declaration, a tenancy in common may be found
where there are words of severance present in the grant, indicating an
intention to have notional shares in the land:
o In equal shares (Payne v Webb)
o Share and share alike (Heathe v Heathe)
o To be divided between (Fisher v Wigg)
o Equally (Re Kilvert deceased)
Four unities for a joint tenancy (AG Securities v Vaughan and others)
An equitable joint tenancy cannot exists where one of the four unities is not
present.
1. Unity of possession – each co-owner is as much entitled to possession of
any part of the land as the other. No other co-owner can be excluded from
any part of the land.
2. Unity of interest – the interests of the joint tenants must be the same in
nature and duration
3. Unity of title – all joint tenants must acquire title under the same
document, i.e. all take their rights by the same conveyance or
simultaneously take possession of the land together
4. Unity of time – the interest of each joint tenant must vest at the same time
(i.e. signing is irrelevant; the interest must take effect from the same start
date)
© Liam Porritt 2020 4
Subsequent events – legal and equitable title
Right of survivorship
• Where co-owners are joint tenants, a consequence of regarding coowners as a single entity is that the right of survivorship operates
between them, such there where a joint tenant dies, his interest will
accrue to the remaining joint tenants.
• Thus, when one joint tenant dies, his interest does not pass under his will
or intestacy, as the right of survivorship operates immediately on death,
whereas a will is operative after death, so survivorship takes effect first
(Re Caines deceased)
• Under a tenancy in common, there is no right of survivorship and so the
deceased’s share will pass under his will or by the rules of intestacy.
o It is possible for an equitable joint tenant to acquire the interest of
a deceased equitable tenant in common under the deceased
person’s will, acquiring ‘dual status’ as a joint tenant and a tenant
in common (Wright v Gibbons).
Appointment and retirement of trustees – LEGAL
Appointment of person who is sui juris and willing to act by:
1. The person named in the trust deed as being able to appoint (TA 1925, s
36(1)(a))
2. The existing trustees (TA 1925, s 36(1)(b))
3. The personal representatives of the last surviving trustee (TA 1925, ss
36(1) and (6))
4. The court in difficult cases (TA 1925, s 41)
5. Where no person nominated to appoint + Bs all sui juris and absolutely
entitled (TLATA 1996, s 19(1)(b)), Bs may unanimously (TLATA 1996, s
19(2)) select new trustees (although not actually appoint) or require
existing trustees to retire.
• Appointment by deed, including implied vesting declaration, vesting trust
property in new trustee alongside continuing trustees as joint tenants (TA
1925, s 40)
• Retirement by deed, with property automatically vesting in the
continuing trustees
o Requires co-trustee consent, or a simultaneous appointment
o There can be no retirement where it will leave one trustee (TA
1925, ss 40 and 39).
© Liam Porritt 2020 5
Severance of a BENEFICIAL joint tenancy
• Dillon LJ: Severance is the process of separating off the share of a joint
tenant, although joint tenants of course do not in law have ‘shares’, such
that the relationship between the person severing and the others
becomes a tenancy in common (Harris v Goddard).
o The right of survivorship does not apply under a tenancy in
common.
o Under a tenancy in common, the deceased’s share will pass under
his will or by the rules of intestacy.
• Severance must occur during the lifetime of the party seeking to sever
and may not be by will (Re Caines).
Modes of severance
Written notice
• Written notice is a mode of severance under LPA 1925, s 36(2)
o No requirement of signature (Re Draper’s Conveyance)
• For valid written notice, it must:
o State the unequivocal and irrevocable (Kinch v Bullard) intention
to sever immediately (Harris v Goddard), expressly or by
implication
o Be served to all the other equitable joint tenants
• Re Draper’s Conveyance – wife successfully seeks court order for house to
be sold and proceeds to be split evenly – summons served to husband
along with an affidavit evinced an intention to sever
o Note that crucially here the proportions (equal shares) were set
out
o It is also unclear whether this case was decided on the basis of
written notice or of a unilateral act operating on a share through
the commencement of proceedings (see below).
o Deemed to have been wrongly decided in Nielson-Jones v Fedden
• Quigley v Masterson – application in court proceedings made during husband’s
lifetime made it clear that wife treated his share as 50% and that she wished to market
the house for sale = severance
o Note that Mr Pilkington’s instruction to solicitors to sever the joint tenancy by
serving written notice on wife = insufficient for mutual conduct
• Harris v Goddard – mere issuance of divorce proceedings + request that a
transfer or variation of settlement take place ‘as may be just’ = insufficient
for severance
o The writing must evince an immediate desire to sever, and may
not be a desire to sever at some time in the future
o The prayer for a property adjustment order, without some notion
as to how proportions might be split, did not convey a sufficient
desire to sever.
© Liam Porritt 2020 6
Delivery of written notice
• Written notice is deemed to have been served on the other joint tenants if
delivered to the other joint tenants or to their ‘last known place of abode
or business’ (LPA 1925, s 196(3))
• Kinch v Bullard – Unregistered post: Wife’s solicitors serve notice by
delivery to husband’s address; husband becomes ill and so the wife
destroys the letter upon delivery
o S 196(3) – normal post: it does not matter by whom notice is
served
o Notice is validly served by delivery to the relevant address
o It matters not if it is seen by the intended recipient
o Once notice served, it is irrevocable
• Re Berkeley Road – Registered post: Miss Elridge and Miss Goodwin JTs;
Miss Goodwin’s solicitors sent notice of severance to the property; Miss
Elridge was at work, so Miss Goodwin signed for the letter and Miss
Elridge knew nothing of the letter until Miss G’s death
o S 196(4) – where registered post, notice deemed to have been
served, even if no actual delivery, provided it was sent to the
correct address and it is not returned undelivered
o S 196(4) –it does not matter whether the letter is in fact seen by
the person to whom it is served
o Once notice served, it is irrevocable
© Liam Porritt 2020 7
Other acts or things effecting severance (LPA 1925, s 36(2))
#1 – a unilateral, irrevocable act operating on one’s own share (Williams v
Hensman)
1. Total alienation is an outright disposal of the beneficial interest in
favour of a third party ~ disposition of an existing equitable interest in
land requires compliance with LPA 1925, s 53(1)(c) (writing signed by
the disposer)
o Ahmed v Kendrick – severance where husband sold the jointly
owned house by fording his wife’s signature
o Penn v Bristol and West Building Society – no severance where
purchaser colluded in forgery with husband of wife’s signature
2. Partial alienation occurs where a joint tenant charges or mortgages his
equitable interest in the property (First National Securities Limited v
Hegerty)
o Husband mortgages jointly owned property by forging wife’s
signature = his interest severed and charge on his equitable
interest
o This requires s53(1)(c) LPA or s 2 LP(MP)A, as below @ (4).
3. Involuntary alienation occurs in the event of bankruptcy, as the
bankrupt’s assets are transferred to the trustee in bankruptcy, thus
severing any joint tenancy (Re Gorman)
4. If a joint tenant enters into a specifically enforceable contract (s 2
LP(MP)A 1989 – writing, all terms, signed x 2) to dispose of their
interest in land, this amounts to alienation, as equity looks upon that as
done which ought to be done (Brown v Raindle)
5. Commencement of litigation may amount to severance
o Re Draper’s Conveyance – unclear whether the judge made decision
of severance on the basis of written notice (seems likely) or the
issuance of divorce proceedings
o However, this mode has been doubted in Nielson-Jones v Fedden
and others as proceedings are not sufficiently irrevocable to evince
a clear intention to sever => therefore ≠ unilateral + need 3rd party
§ Signing of a memorandum that husband would try to sell
house – not notice in writing, as authorised sale of house,
not severance of interest and division of proceeds
§ No mutual agreement
§ Consider mutual conduct…
6. Mere declaration of one party, without written notice, of desire to sever
does not constitute an act operating on one’s own share; there must be an
act involving a third party OR acquiescence from the other party such
that it is an inferred mutual agreement (Nielson-Jones v Fedden).
© Liam Porritt 2020 8
#2 and #3 – Mutual agreement, or mutual conduct from which mutual
agreement or intention may be inferred (Williams v Hensman)
• Burden of proof on the party alleging severance to show mutual
agreement, express or inferred, to sever
• Inference of mutual agreement requires sufficient evidence of consensus
between the parties, evinced especially by the involvement of legal advice
and the elaboration of terms.
o Nielson Jones v Fedden – no severance by conduct unless
irrevocable:
§ Intention to keep finances separate + memorandum for sale
+ declaration by husband of intention to sever + £200 taken
by each from £1000 deposit
§ Negotiating precise shares of proceeds of sale => interim
agreement of the deposit insufficient to show agreement as
to the overall proportions and severance of joint tenancy
§ Lord Denning MR expressed in Burgess that he felt this was
wrongly decided, as the evidence was sufficient to indicate
a common intention to sever, without the need for this to be
irrevocable
o Davis v Smith – severance by mutual conduct where some assets
had already been divided (i.e. endowment policy), there was
intention to do the same for the sale proceeds in correspondence
and parties had instructed solicitors
§ Here, this is a course of dealing (prior mode of dealing with
assets that may be deemed to continue), rather than mere
negotiations (Gore v Carpenter)
o Gore and Snell v Carpenter – no severance where only an
agreement in principle, but where a final agreement has not been
reached due to having other matters to finalise and where the
parties reserve their rights to change provisions or not enter into
agreement at all
o Burgess v Rawnsley – parties had orally agreed a price but one
reneged on this; court held severance by mutual agreement
§ Note: Pennycuick’s obiter that incomplete negotiations
could amount to mutual conduct, and there is no need for
SP to be available, as agreement without specific
enforceability is sufficient evidence of common intention
o Hunter v Babbage – all major terms (including unequal shares of
division) contained in draft court order; court held severance by
mutual agreement, although the order itself was of no effect, and
so the shares were 50/50
© Liam Porritt 2020 9
• Where intention by one party, but not the other:
o Nielson-Jones (see above)
o Evidence of consensus = intention of BOTH parties (Carr v Isard),
specifically about the matter of severance, i.e such that their
mutual intention is inconsistent with joint tenancy (Greenfield v
Greenfield)
§ Greenfield – in spite of physical division of property, no
evidence that did not wish right of survivorship to operate
§ Carr v Isard – life interest in her ‘share’ expressed by wife in
will; husband’s will gave interest in the residue of the whole
= lack of common intention to sever
§ Re Woolnough (Deceased) – brother and sister each
executed wills giving each other a life interest in their share
= inconsistent with JT, so agreement to hold distinct shares
+ severance
The effect of severance
• Where there are more than two joint tenants, the party severing becomes
a tenant in common with the remaining parties; these non-severing
parties remain as joint tenants between themselves.
• Where there are only two joint tenants, severance will have a bilateral
effect, and both interests will be converted into tenancies in common.
• In the absence of agreement between the co-owners, when an equitable
joint tenancy is severed the joint tenant who severs acquires a share in
proportion to the number of joint tenants alive at the time of severance,
and not in proportion to contributions made to the purchase price
(Goodman v Gallant).
© Liam Porritt 2020 10
Delegation
• All trustees of land may jointly (i.e. by all trustees), by power of attorney,
delegate any of their functions as trustees to any B/Bs of full age (TLATA
1996, s 9)
• Bs take on trustee duties, except that original trustees preserve their role
in overreaching
• Delegation may be revoked by any one or more trustees (TLATA, s 9(3))
Disputes: occupation and sale
Disputes as to occupation by beneficiaries
• Bs may occupy trust land if:
o Trust set up to provide land for occupation (sole or joint) (s
12(1)(a) TLATA)
o Trustees acquire land for occupation (sole or joint) (s 12(1)(b))
• This right does not apply if land is unavailable or unsuitable for
occupation (e.g. let to a tenant) (s 12(2))
• Bs already in occupation cannot be excluded from occupation without
their consent / approval of court (s 13(7); Rodway v Landy)
• Trustees may exclude or restrict the entitlement of any, but not all, Bs (s
13(1)) where reasonable to do so (s 13(2))
o Trustees may require occupying Bs to compensate other Bs
excluded from occupation (s 13(6)) = occupation rent on
occupying Bs to non-occupying Bs (Dennis v McDonald), which may
include payment of mortgage
• Trustees may impose reasonable conditions on the occupying Bs (e.g. requiring they pay
outgoings) (s 13(3))
• In exercising these powers, they must have regard to (s 13(4)):
o The intentions of the person(s) who created the trust
o The purposes for which the land is held; and
o The circumstances and wishes of the Bs entitled to occupy
© Liam Porritt 2020 11
Sale
• Trustees are given the powers of an absolute owner, including sale, lease,
mortgage (TLATA 1996, s 6(1))
• In exercising their powers, trustees must have regard to the rights of the
beneficiaries (TLATA 1996, s 6(5))
• Trustees may, where the Bs are of full age and capacity and absolutely entitled, convey
the land to these Bs even if the Bs do not require the trustees to do so
• Trustees have the power to acquire land in the UK (s 8 TA 2000)
Consent
• Trustees’ powers may be subject to the consent of the Bs, where so stated
by the settlor/testator in the instrument creating the trust (TLATA 1996,
s 8(2))
o Where consent of a minor required, Trustees must gain consent of
parents/guardian (TLATA 1996, s 10(3))
o Purchaser will take freely if any two of the Bs have consented
(TLATA 1996, s 10(1)).
o Trustees will be in breach of trust if they fail to obtain the consents
required.
• The court can dispense with any requisite consent to sale (TLATA 1996, s
14(2)(a)).
Consultation
• Trustees have a duty to consult the Bs of full age (TLATA 1996, s
11(1)(a))
• Trustees must give effect to the wishes of the majority by value, but only
so far as consistent with the general interest of the trust (TLATA 1996, s
11(1)(b))
o Here, consider the general purpose of the trust as initially created
= likely there will be conflict between this general interest and
desire to sell, so therefore in order to avoid a potential breach of
trust, the trustees should seek a court order for sale (see
below)
• The duty to consult does not apply where:
o Excluded in express declaration of trust (s 11(2)(a))
o Trust created or arising under a will made before 1997 (s
11(2)(b))
o Trustees exercising s 6(2) TLATA 1996 power to insist upon
transferring the land to Bs (s 11(2)(c))
o Trust expressly created before 1997, unless a deed is executed for
s 11(1) to apply (s 11(3))
• Purchaser takes free from interests where overreaching, regardless of
compliance with consultation rules (TLATA 1996, s 16(1))
© Liam Porritt 2020 12
Court orders
• Any trustee or person with an interest in the property (beneficiary,
mortgagee, trustee in bankruptcy) subject to the trust may apply to the
court for an order relating to the exercise of the powers of the trustees
(TLATA 1996, s 14(2)(a)).
• The court must have regard to the factors set out in s 15(1)(a)-(d) TLATA:
a) Intention of creator – where creators are the Bs themselves, cover
this under purpose for which trust held
b) Purpose for which the trust is held – if purpose cannot be
continued, the court is likely to order sale
• Jones v Challenger (pre-TLATA ~ these cases are still useful,
but should be considered with caution and in light of the
trust for sale approach, which defaulted to favour sale, and
the greater flexibility now afforded to courts relative to
under LPA 1925, s30 – The Mortgage Corporation v Shaire
and others) – just because husband would like purpose to
continue (marital home) does not mean that it can; wife
had left him, and so the purpose could not continue = sale
• In Re Ever’s Trust (pre-TLATA) – where the purpose was as
a family home (here with 3 children living there), while
that purpose continued (after separation of husband), the
court would not order sale – future application could be
made when the children were older or circumstances had
changed
• Re Buchanan-Wollaston’s Conveyance (pre-TLATA) – 3 of 4
were still served by the purpose of the trust of land to
preserve sea view (which they had covenanted not to deal
with unless there was unanimous agreement) and prevent
building = no sale ordered
c) Interests of minors (where land their home)
• Especially where minors in (special) education.
© Liam Porritt 2020 13
d) Interests of secured creditors
• This factor usually weighs heavily in favour of sale,
especially where it is the creditor who is seeking the order
for sale (Bank of Ireland Home Mortgages Ltd v Bell), in
order (1) to ensure lenders do not become reluctant to lend
+ (2) to disincentivise banks making debtors bankrupt in
order to enforce under the creditor-favourable s 335A IA
1986 factors.
o BoI: despite the property being purchased as a
family home + wife and son being able to
continue this purpose, order made for sale on
account of the creditor.
• First National Bank plc v Achampong: sale ordered where
wife, children (inc. handicapped child) and grandchildren
living at property
• Putnam & Sons v Taylor: interests of secured creditor
favoured over the poor health of the husband, but a fivemonth postponement was allowed for occupiers to sell,
rather than a sale being enforced
• Fred Perry v Genis: commercial interests of creditors over
children’s educational interests, at specialist school; note:
postponement of sale for 12 months
• This factor will only be weighed less heavily where the
lender can continue to earn interest in an arrangement
with the occupying co-owners (The Mortgage Corporation v
Shaire and others).
e) S 15 (3) factor: circumstances and wishes of the beneficiaries of
full age (by majority)
© Liam Porritt 2020 14
Alternatives to (immediate) sale
• Courts may postpone sale where:
o One party ‘want[s] time to obtain alternative accommodation’
(Devlin LJ in Jones v Challenger)
o It is beneficial for occupiers to sell themselves (5-month
postponement), rather than a sale being enforced (Putnam & Sons
v Taylor)
o The parties wishing to continue occupying the property will be
able within a short period to buy out their co-owners seeking a
sale (Ali v Hussain)
o The lender is seeking sale, but can continue to earn interest in an
arrangement with the occupying co-owners (The Mortgage
Corporation v Shaire and others)
o … or as is otherwise reasonable.
• Trustees may require occupying Bs to compensate other Bs excluded
from occupation (s 13(6)) = occupation rent on occupying Bs to nonoccupying Bs (Dennis v McDonald), which may include payment of
mortgage
o Here, half fair rent paid by violent husband (with three children in
house) to wife.
© Liam Porritt 2020 15
Bankruptcy
• Where the bankrupt party is a beneficial joint tenant, bankruptcy is an act
of severance, referred to as involuntary alienation (Re Gorman)
• The assets of the bankrupt party, including this beneficial tenancy in
common, vests in the trustee in bankruptcy (s 306 Insolvency Act 1986),
o However, where the bankrupt party is a trustee, legal title is not
affected, and so remains with the bankrupt party (IA 1986, s
283(3))
• The duty of the trustee in bankruptcy is to administers the bankrupt’s
assets in order to pay off creditors (IA 1986, s 305(2)), and thus they seek
to sell the property.
• Where this is resisted by other co-owners, the TiB must apply to the court
under TLATA 1996, s 14 for an order for sale of the co-owned property.
• The s 15 TLATA factors do not apply to an application by a trustee in
bankruptcy (TLATA 1996, s 15(4)); instead the IA 1986, s 335A factors
apply
• Within the first year (s 335A(2)):
i. Interests of creditors (s335A(2)(a))
ii. Conduct of spouse, so far as contributing to the bankruptcy (s
335A(2)(b)(i)
iii. Needs of spouse (s 335A(2)(b)(ii))
iv. Needs of children (s 335A(2)(b)(iii))
v. Any other circumstances, except anything relating to the bankrupt
party (s 335A(2)(c))
• While on the surface of the statute, these factors are to be given equal
weight, In re Citro (Domenico) (A Bankrupt) makes clear that the
interests of the creditors should generally prevail over the interests of
the spouse and any children, and eviction, the inability to buy a
comparable home and problems of schooling are not sufficiently
exceptional to justify lengthy postponement
o Note that this decision was made under LPA 1925, s 30 and so,
while useful, should be considered with caution and in light of the
trust for sale approach, which defaulted to favour sale, and the
greater flexibility now afforded to courts under s 335A(2) IA 1986
relative to under LPA 1925, s30 – The Mortgage Corporation v
Shaire and others
o It seems likely, however, that the interests of the creditors will be
given dominance: in order (1) to ensure lenders do not become
reluctant to lend + (2) to disincentivise banks merely delaying
their application by a year until the presumption is very strongly
in favour of sale.
o In re Holiday – none of the creditors presented a bankruptcy
petition, the bankrupt did; as there was no doubt that the creditors
would be paid, there was no order for sale
© Liam Porritt 2020 16
• After 1 year = sale unless exceptional circumstances (IA 1986, s 335A(3))
o Re Mott – elderly mother, where sale would be extremely
detrimental to her health = postponed until after death
o Re Haghighat (A Bankrupt) – eldest child of bankrupt seriously
disabled with cerebral palsy and required continuous care = 3-
year postponement
o Re Raval – short postponement of an order for sale, where
paranoid schizophrenic spouse would have been seriously
affected by a move
o Nicholls v Lan – ditto = postponement by 18 months
o Re Bremner – bankrupt suffering from terminal cancer (6 months
to live), sale postponed to three months after bankrupt’s death
FOR THE SPOUSE to be able to care for him in their home during
the last days before his death
o However, note that arguments on the basis of ECHR Art 8 right to
private and family life, home and correspondence have failed, and
subsections (2) and (3) are deemed to be ECHR compatible (Ford v
Alexander)
o Ford v Alexander – moderate depression was insufficiently
exceptional to justify postponement and so an order for sale was
granted
Disputes between husband and wife
• Usually governed by Matrimonial Causes Act 1973
• Usually Mesher order, whereby house transferred to / remains in joint names on trust in
shares as court stipulates, with no sale until children 17 or leave full-time education
Acts to terminate co-ownership
• Sale – when property sold, proceeds divided amongst owners + co-ownership comes to
an end
• Partition – physical division of the land = each co-owner owns a separately identifiable
piece of land absolutely
o Trustees may partition land, but only if they have the consent of the Bs (TLATA
1996, s 7(3))
• Merger – one joint owner acquires the interest of all other joint owners – deed for legal
title; LPA 1925, s 53(1)(c) for equitable title OR will/intestacy for equitable tenancy in
common
• Union in sole surviving JT
© Liam Porritt 2020 17
Overreaching
Where court ordered sale
• Where there is a court-ordered sale, s 2(1)(iv) LPA 1925 makes sale an
automatically overreaching event, with no requirement for payment to
two or more trustees
o … meaning that the Bs’ interests detach from the land and attach to
the proceeds of sale, allowing the purchaser to take free from the
beneficial interests (s 2(1)(ii) LPA 1925).
Where no court ordered sale
• Where same parties own the property in law and in equity as joint
tenants, nothing will be put on the proprietorship register (s 44)
• Registered land – express trust of land = restriction (s 40 LRA 2002)
should be entered on the proprietorship section of the register (ss
42(1)(b) and 44(1) LRA 2002).
o This restriction makes clear that a sole trustee cannot give valid
receipt of the purchase money and thus the purchaser must pay
the money to at least two trustees for overreaching of the
beneficiaries’ interests (s 27(2) LPA 1925)
• Where no restriction, a purchaser may be bound by equitable interests
where they are not overreached and where they are in actual occupation
(LRA 2002, Sch 3 para 2), subject to the exceptions.
o City of London Building Society v Flegg – overreaching renders
equitable interests in actual occupation irrelevant; the purchaser
takes free
• Unregistered title – BIUT non-registrable
o Can be overreached
o Where not overreached, doctrine of notice applies
Where one trustee
• If there is one trustee, a beneficiary can obtain an injunction to restrain sale until
another trustee has been appointed (Waller v Waller)
Family Law Act 1996 rights of occupation
• Where spouse / civil partner with rights of occupation under the Family Law Act 1996,
that person can enter a Class F land charge in unregistered land or enter a notice on the
charges register in registered land (LRA 2002, s 32).
• This does not protect the interest under the trust of land, but will effectively put a block
on any dealings in the property by the legally owning spouse.

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