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Procedural guide—applications under the Trusts of Land and Appointment of Trustees Act 1996

Procedural guide—applications under the Trusts of Land and Appointment of Trustees Act 1996 This Procedural Guide sets out the steps to be taken on an application under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) by a trustee of land, or a beneficiary with an interest in property subject to a trust of land. It includes guidance on the criteria for an application, the pre-action protocol, offers under Part 36 of the Civil Procedure Rules 1998 (CPR), SI 1998/3132, evidence requirements and orders that may be made by the court. An application under TOLATA 1996, s 14 may be made by a trustee of land or a beneficiary with an interest in property subject to a trust of land. Additionally any other person with an interest in such property, such as a mortgage company, has standing to bring a claim. The court has a broad discretionary range of powers to make orders regarding the exercise of the trustees’ functions or to the nature...

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Trusts of Land and Appointment of Trustees Act 1996

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) came into force on 1 January 1997. Under it:•the trust for sale is replaced by the trust of land•the doctrine of conversion is abolished•both the trustees and the beneficiaries are given additional powers and rights in relation to the trust property•the court is given enhanced powers to make orders in relation to the trust•the beneficiaries are given powers to remove and appoint new trusteesTrusts of landAny trust (express, implied, resulting or constructive) which includes land as part of the trust property is a trust of land; this includes a trust for sale and a bare trust. This applies to all such trusts irrespective of when they were created, except in relation to land which is ‘settled land’ within the meaning of the Settled Land Act 1925 (SLA 1925). However, TOLATA 1996 provides that any trust created after 1 January 1997 cannot be an SLA 1925 settlement unless it is created pursuant to an existing SLA 1925 settlement (eg...

Personal representatives and trustees—power of appropriation

Personal representatives and trustees—power of appropriation Appropriation is a process by which a personal representative (PR) or a trustee uses a specific asset in the estate or trust fund to meet, in full or in part, a beneficiary’s entitlement or interest. Personal representatives' common law and statutory power of appropriation PRs have a power of appropriation under the common law over any part of the residuary estate (but not a fund) which may be exercised with the consent of the beneficiary, in or towards satisfaction of a vested legacy or a share of residue, even if payable at a future time. This does not extend to a contingent legacy unless it carries the right to the intermediate income. The power extends to both real and personal property whether or not that property is subject to a trust for conversion. The common law power does not extend to PRs appropriating unauthorised investments. PRs have a statutory power of appropriation under section 41 of the Administration of Estates Act...

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Declaration of simple trust of land on severance of joint tenancy of property subject to a mortgage

Declaration of simple trust of land on severance of joint tenancy of property subject to a mortgage Date [date] Parties 1 [name of first joint tenant] of [address] 2 [name of second joint tenant] of [address] (together referred to as Joint Tenants) background (A) By a [conveyance OR transfer] dated [date] made between (1) [name(s) of seller(s)] and (2) the Joint Tenants, the property described in the Schedule (Property) was [conveyed OR transferred] to the Joint Tenants in fee simple as beneficial joint tenants. (B) By a mortgage (Mortgage) dated [date] made between (1) the Joint Tenants and (2) [name of lender] (Lender), the Property was charged to the Lender to secure payment to the Lender of the sums specified in the Mortgage. (C) The Joint Tenants have agreed that, as from the date of this Deed, the joint tenancy is severed and the Property, subject to the Mortgage, is held by them as tenants in common in equal shares, on the further terms...

Declaration of trust

Declaration of trust Date [date] Parties 1 [name of Trustee] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Trustee) 2 [name of Beneficiary] [of OR incorporated in England and Wales (company registration number [number]) whose registered office is at] [address] (Beneficiary) 1 Trust of land 1.1 The Trustee is the owner of the [freehold OR leasehold] property known as [details] [registered at HM Land Registry with [title absolute] under title number [number]] (Property). 1.2 The parties declare that the Trustee: 1.2.1 holds the Property on trust [for the Beneficiary absolutely OR as to [figure]% for the Beneficiary and [figure]% for the Trustee]; 1.2.2 will, at the request of the Beneficiary, transfer the Property or any part or parts of it either to the Beneficiary or to anyone else as the Beneficiary directs; 1.2.3 will apply to HM Land Registry as necessary to give effect to any required transfer or dealing, or to enable...

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Can a unilateral notice be registered against a property owned by a party to financial remedy proceedings where that property is co-owned by a third party?

Can a unilateral notice be registered against a property owned by a party to financial remedy proceedings where that property is co-owned by a third party? Section 30 of the Family Law Act 1996 (FLA 1996) provides that where one spouse (or civil partner) has the right to occupy a dwelling house, the other spouse is entitled to register home rights, provided that the property has been the matrimonial home. Those home rights may be protected, in the case of a property held in the sole name of one spouse only, by way of a notice being registered with the Land Registry. If the title to the property is registered, then the application for the home rights notice should be made using Form HR1—Application for registration of a notice of home rights. If the property is unregistered, an application may be made to the Land Charges Department for the registration of a Class F land charge. A spouse may only protect their interest in one property at...

A Will grants X a right to reside in a property but is silent as to whether X can allow others to live in the property with him during the period of time he resides there. X is not entitled to any income from the property. Under what circumstances could X allow others to occupy the property with him?

A Will grants X a right to reside in a property but is silent as to whether X can allow others to live in the property with him during the period of time he resides there. X is not entitled to any income from the property. Under what circumstances could X allow others to occupy the property with him? The rights of X with respect to the property will depend on all the circumstances. In particular, whether X's occupation arises out of an interest in possession in the property, or a tenancy or licence to occupy, is likely to determine whether he can allow other individuals to live with him in the property. It is important to note that not having a right to income is not per se, decisive of the issue of whether X has an interest in possession in the property. In some cases, a right to reside can amount to an interest in possession. Right to reside as an interest in possession For information on the...

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A ‘novel’ case of business rates & barristers chambers (Kevin Prosser KC v Andrew Ricketts)

Local Government analysis: The Upper Tribunal in Kevin Prosser KC v Andrew Ricketts deals with the question of whether barristers’ chambers, comprising barristers’ rooms, clerking rooms, etc, room should be treated as a collective, single unit for the purposes of national non-domestic rates, or whether occupancy of individual rooms, was exclusive to the individual barrister, such that they ought to be separately rated. The Upper Tribunal held that the separate occupation of rooms by individual members of Pump Court Tax Chambers (PCTC), did not mean that they were in rateable occupation of their separate rooms because such did not undermine the joint occupancy arrangement of all members. Accordingly, the appeal was dismissed. Written by Katherine Traynor, barrister at Landmark Chambers.

Private Client weekly highlights—14 November 2024

This week’s edition of Private Client highlights includes: (1) Ballard v Buzzard, where rectification was ordered to validate pension scheme amendments despite defects in the execution of the deeds; (2) TA v The Public Guardian, which concerned the duties of a certificate provider for a lasting power of attorney; (3) the Civil Justice Council publishes its final report on the procedure to determine mental capacity in civil proceedings; (4) HMRC publishes new guidance on the abolition of the furnished holiday lettings tax regime; (5) Harrow School’s unsuccessful cy-pres application to expand and update its charitable objects, and (6) Raja v ATM Law, which involved a dispute over the beneficial interest in a property subject to a charging order and the validity of trust deeds.