TLATA altered the rights of The Wolfenden Report shifted perceptions about the role of the law in enforcing morality.'

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Land law

The tenants in common are owners of undivided shares and whilst the advantage is that they avoid the ‘survivorship wheel of fortune’ and can decide to whom their share may vest, its drawbacks are the great inconvenience it creates for the conveyancing process. The 1925 legislation sought to promote free alienability of land and aimed to simplify the conveyancing system. Consequently it held that the tenancy in common, could exist only in equity and also that whenever land is subject to co-ownership a trust for sale is imposed. The equitable interests in the land were presumed to be rights in personalty…and therefore all trustees had an automatic duty to sell. However since the coming into force of the LPA1925 the position of undivided owners is different from what it was before. No longer is property purchased primarily for investment as matrimonial and cohabiting purposes are fast becoming more popular. However the doctrine of conversion was never strictly applied and courts decisions were often based on the specific purposes of the property. TLATA introduced new reforms for undivided owners, and this practice has now been given statutory effect under the trusts of land.

The general rule pertaining to a trust remains applicable to TLATA and trustees have a fiduciary duty to safeguard the interest of the beneficiaries’. Whilst the act followed the recommendation to completely abolish strict settlements and trust for sale, its approach seemed somewhat laid back. It abolished strict settlement  but many aspects of the trust for sale have been retained in the trust of land. Furthermore it has preserved the doctrine of overreaching, thus in a dispute, the beneficiaries rights to occupation could still be superseded by a right to sell.

The right to dispose ensures that the trustee will only give or leave legal estate subject to the rights of the beneficiary. Under conversion, the beneficial interest may be overreached if two or more trustees sell the land, the effect is that the trustees hold the proceeds of sale on trust for the beneficiary. Where under S28 the beneficial interest is overreached, action may be taken against purchaser of legal estate for value consideration only if registered land, the beneficiary was in actual occupation when the legal estate was transferred or unregistered land when the purchaser had actual or constructive notice.  In FLEGG the beneficiaries claimed against a sale S27(2) without being consented, but failed on the grounds that once money comes into the hands of two trustees they could not rely on the overriding rights. The combined effect of the BOLAND and FLEGG emphasises that so long as there is more than two trustees, the purchaser is protected. The overreaching provisions governing the trust for sale have been adapted to meet the needs of the new trust of land and FLEGG remains undisturbed by the act. Therefore it would appear that beneficiaries are still ‘insufficiently protected’ from purchasers.  

The trustee under trust of land still operate their managerial duties, however they now have ‘powers of an absolute owner’ and cannot execute a power to dispose without beneficiaries consenting. Trustees must also give effect to the beneficiaries’ rights to be consulted. Yet the trustee is not obliged to comply with the S11 needs of the beneficiary except where the wishes are expressed by the majority shareholders S11 (1). This however has been criticised for favouring the weight of interest over the number of beneficiaries, which could give rise to the unfair situations which arose under the doctrine of conversion. In ReMayo, the courts issued a sale of land in favour of one co-owner against the wishes of the other tenants. The case clearly demonstrated the effects of applying the doctrine and trust for sale, which stipulated that beneficiaries’ interests were in the proceeds of a sale of land, and where a duty to sell overrode a power to postpone. Under TLATA there is no duty to sell and additionally all decisions are based on factors of reasonableness. So a power to sell can be avoided, where a beneficiary may utilise his rights under S14, which includes an injunction restraining the trustee from completing a sale without prior consent. Contrastingly the courts power to suspend the right to consent and consultation suggests that the trustees’ duty to give effect to the beneficiaries’ interest in this way is somewhat restricted.

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The undivided owner has ‘a perfect right’ to possession of the land free from exclusion. This lies in relation to co-ownership requirement for the unity of possession. Pre-1996 case law reinforced this right and as asserted in Bull tenants in common were entitled to the same rights as the extinct legal tenants in common S14LPA, thus the occupier could remain in the land. This right has now been legitimised under S12TLATA, which gives the beneficiary an absolute right to occupation. It is now dependant upon the purpose of the trust and the availability of land. This however has been criticised for ...

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