Settlements that was established before TOLATA will continue under the Settled Land ACT 1925 (SLA). Any attempts to create an entailed interest will create a fee simple instead. Therefore over time settlements will simply diminish.
The abolition of the Doctrine of conversion was made in order to change the way a beneficiary holds an interest in land. Equity regards as done that which ought to be done. Therefore the beneficiary had to sell the land under a trust of sale, making the beneficiary only interested in the proceeds of the eventual sale. Under TOLATA the beneficiary will have an interest in the land itself and not in monetary form. Although this will fall into the definition land in s205.(1)(ix) of the LPA 1925 making it more complex.
One of the main functions of TOLATA is one that gives power to the trustees of land. Before TOLATA, the trustees had a duty to sell the land, after the introduction of TOLATA they can now sell the land only if they have the desire to do so.
This is probably so as the nature of society and the economy have changed. Trusts are simply set up for a different purpose to that in 1925, also the modern house buyer will buy to protect themselves of their interest first and foremost before buying other houses for investment.
In previous law, the power of trustees were restricted in the sale of the land, however with TOLATA, there are no restrictions of the trustees powers. The trustees with new given power must convey the land to the beneficiaries even though they might not have instructed them to do so.
Trustees that have sold the land can now use the proceeds to purchase other land so as long as it is for investment.
With given power, the trustees can and might abuse its powers. Therefore they are subject to section 6 (6) of TOLATA which states that these powers must not be used in contravention of other enactments or any rule of law or equity, consequences of such misuse will render the conveyance as void.
Trustees with new given power are first and foremost subject to the consent of the beneficiaries, but only if it was in the agreement or through a court order.
Beneficiaries are entitled to the right of occupation in the trust property so as long as the trust allows the occupation and the land is available; otherwise section 12(2) states that a beneficiary does not have a right to occupy if the land is unsuitable or unavailable.
The right to occupy will be restricted under section 13 where there are two or more beneficiaries. If there are more than two beneficiaries, then the trustees will have the power to exclude one or more beneficiaries the right to occupy, but not all of them.
The trustees also have the power to attach certain conditions to the beneficiaries’ right to occupy as long as it is reasonable. Furthermore, if a beneficiary is excluded from the land, then the trustees can require the occupiers to pay rent to the excluded parties under section 13 (8).
Trustees can now be appointed or removed due to TOLATA under section 19 and 20 of the act, whilst previously; they would not have such power to do so. However, they can only do so if; there are no persons that have been nominated or when the beneficiaries come of full age and are entitled to trust property s.19(1).
This is so that the beneficiaries can obtain full control of the trust and not forced to terminate it.
Under TOLATA the power of the courts have been extended to include any orders the court thinks fit to make under section 14 of TOLATA.
This change in the law is made in order which includes the remainderman and also an order for the prevention of the sale of the property, whilst previously there was no such right.
However, section 14 does not permit an order to remove or appoint a new trustee. Separate and specific provisions are given to trustees that want to declare bankruptcy in which section 17(2) applies trusts of proceeds of sale of land. Therefore it is not very clear in that if the proceeds of a trust of land, then when will the land cease to be land in TOLATA
In the case of Re Wakeham [1945] Ch 177 in which once the land was sold, the trust ended and the trustees could not re invest, this now has been reversed, but concern have been viewed in that section 17 (1) states that trustees powers to purchase a legal estate also applies to trustees of the proceed of sale of land. Therefore it is hard to see when the trust will end. TOLATA also excludes any guidelines with respect to time scale or other limitations.
In conclusion TOLATA abolishes law that is out of date in which does not reflect the living style of the modern times.
Furthermore, TOLATA has emphasised the recognition and protection of the beneficiaries rights from that of the protection for the purchaser of land.
The courts are also given more power in that they can make an order they feel fit and are not forced to make or refuse order to sell and finally, the remainderman can also now go to court if there have been grievances.
