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

2011 ◽  
Vol 70 (3) ◽  
pp. 579-606 ◽  
Author(s):  
Martin Dixon
Keyword(s):  
Liquid Asset ◽  
Narrow View ◽  
The Family ◽  
Original Scheme ◽  
Family Home ◽  
The Law ◽  
Land Holdings ◽  
Trust Corporation ◽  
Trust Of Land ◽  
Capital Value

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.

6. Interests in the Family Home

Land Law ◽  
2020 ◽  
pp. 226-272
Author(s):  
Chris Bevan
Keyword(s):  
Sense Of Self ◽  
Family Members ◽  
Sense Of Security ◽  
The Family ◽  
Cohabiting Couples ◽  
Family Home ◽  
The Law ◽  
Trust Of Land

For many people, whether or not they enjoy an interest in the family home is fundamental to their sense of security, stability, and even their sense of self. However, a person may find themselves in a position where they are neither the registered legal owner of property nor do they enjoy an equitable interest under an express trust of land. This chapter examines how a person may acquire an interest in the family home through operation of the law of implied trusts: constructive and resulting trusts. It focuses on non-married, non-civilly partnered, cohabiting couples, or family members otherwise coming together to purchase property as a home. For these people, no legislation exists that gives courts jurisdiction to declare and adjust property interests. In this situation, the courts turn to the law of trusts to determine rights in the home, as this chapter explores.

21. Special rights in relation to the family home

2018 ◽  
Author(s):  
Judith-Anne MacKenzie ◽  
Aruna Nair
Keyword(s):  
Married Couples ◽  
Land Law ◽  
Additional Information ◽  
The Family ◽  
Family Home ◽  
The Law ◽  
Special Rights

Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter brings together some matters about the family home, and provides additional information about certain statutory rights which members of a family may have in respect of their homes, contrasting the rights of married couples and civil partners with the more limited rights of cohabitants. In conclusion, the chapter outlines proposals for reform of the law relating to cohabitants’ rights in the family home.

9. Implied trusts

2018 ◽  
Author(s):  
Iain McDonald ◽  
Anne Street
Keyword(s):  
Essential Information ◽  
The Family ◽  
Family Home ◽  
The Creation ◽  
The Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter deals with the central issues of implied trusts. Implied trusts can be either resulting or constructive. Resulting trusts fall into two categories, automatic or presumed. Constructive trusts are more difficult to define as the scope of their application seems to have been ‘left deliberately vague’ so that the courts can develop them as needed. There are no formalities for the creation of implied trusts. The law has developed methods of identifying the creation of implied trusts. Implied trusts are particularly important in relation to the family home.

Textbook on Land Law

2016 ◽  
Author(s):  
Judith-Anne MacKenzie
Keyword(s):  
Real Life ◽  
Third Party ◽  
Land Law ◽  
The Real ◽  
The Family ◽  
Family Home ◽  
The Law ◽  
Definition Of ◽  
Straightforward Approach

Course-focused and comprehensive, the Textbook on series provide an accessible overview of the key areas on the law curriculum. Thirty years since it was first published Textbook on Land Law continues to provide an interesting, accessible, and original account of contemporary land law. The sixteenth edition builds upon the book’s unique and straightforward approach. Using a fictional case study to illustrate the key principles of land law, the chapters demonstrate the real-life applications of this often abstract subject, while clarifying complex areas and common points of confusion. The book consists of seven parts. Part I provides an introduction to estates and interests in land. Part II looks at the acquisition of estates in land. Part III considers the two legal estates of freehold and leasehold, and in particular looks in detail at the obligations of a leasehold estate, their enforcement and remedies for their breach. Part IV looks at trusts and proprietary estoppel. Part V is about licences. The next part considers third party rights and the final part concludes with a review of the law relating to the family home, and a consideration of the definition of ‘land’.

20. Resulting and constructive trusts of the family home

2016 ◽  
Author(s):  
Judith-Anne MacKenzie
Keyword(s):  
The Other ◽  
The Family ◽  
Family Home ◽  
The Law

Course-focused and comprehensive, the Textbook on series provide an accessible overview of the key areas on the law curriculum. This chapter deals with resulting and constructive trusts of the family home. It explains how cohabitants, spouses and civil partners may acquire rights to share in a family home owned by the other partner (sole name cases); how shares in a family home are quantified in sole name and joint-name cases; and how partners’ intentions about ownership may change. Stack v Dowden and Jones v Kernott, together with later decisions, are considered in detail.

Concentrate Questions and Answers Equity and Trusts

2020 ◽  
Author(s):  
Rosalind Malcolm
Keyword(s):  
The Family ◽  
Questions And Answers ◽  
Family Home ◽  
The Law

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans, suggested answers, and author commentary. This book offers advice on what to expect in exams and how best to prepare. It starts off with an introduction to the nature of equity and the law of trusts. The three certainties and formalities are then described. There is a chapter on trusts, powers, and discretionary trusts which is followed by a description of charitable trusts, trusts of imperfect obligation, and implied and resulting trusts. The book goes on to look at constructive trusts, trusts of the family home, equitable estoppel, the administration of trusts, and finally looks at equitable remedies. This book also includes separate chapters on skills for success in both exams and in coursework assessments.

Concentrate Questions and Answers Equity and Trusts

2018 ◽  
Author(s):  
Rosalind Malcolm
Keyword(s):  
The Family ◽  
Questions And Answers ◽  
Family Home ◽  
The Law

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans, suggested answers and author commentary. This book offers advice on what to expect in exams and how best to prepare. It starts off with an introduction to the nature of equity and the law of trusts. The three certainties and formalities are then described. There is a chapter on trusts, powers, and discretionary trusts which is followed by a description of charitable trusts, trusts of imperfect obligation, and implied and resulting trusts. The book goes on to look at constructive trusts, trusts of the family home, equitable estoppel, the administration of trusts, and finally looks at equitable remedies. This book also includes separate chapters on skills for success in both exams and in coursework assessments.

5. Co-ownership

Land Law ◽  
2018 ◽  
Author(s):  
Chris Bevan
Keyword(s):  
Common Law ◽  
The Family ◽  
Family Home ◽  
The Law ◽  
Relationship Breakdown ◽  
The Individual

This chapter discusses the law of co-ownership. Co-ownership is the name given to the situation where two or more people own land at the same time. This land may be freehold or it may be leasehold. The chapter considers questions such as how does the law deal with disputes over the family home when spouses face relationship breakdown, often with one partner wishing to remain in the home, perhaps with children? Whose interest prevails, the individual or the bank, when a co-owner finds herself in serious debt? The law of co-ownership represents an amalgam of common law rules and statutory provisions, most notably under the provisions of the Law of Property Act 1925 and the Trusts of Land and Appointment of Trustees Act 1996.

10. Interests in the family home

2018 ◽  
Author(s):  
Robert Pearce ◽  
Warren Barr
Keyword(s):  
Married Couples ◽  
Current State ◽  
The Family ◽  
Family Home ◽  
The Law ◽  
The Relationship

This chapter starts by outlining some of the changes in society that have driven the development of the law on disputes regarding the family home. When a family is living happily together, there are unlikely to be disputes about the ownership of the family home. However, where the relationship fails, or one of the parties dies, the division of assets-including the family home-can be a deeply divisive issue. Where a couple are married, their dispute can often be resolved through the divorce legislation. Even then, the chapter shows how equity may have a part to play. It also looks at the current state of the law. Most of the cases taken up in this chapter involve cohabiting (rather than married) couples and the family home.

9. Trusts and the family home

2020 ◽  
pp. 251-282
Author(s):  
Sandra Clarke ◽  
Sarah Greer
Keyword(s):  
Two Stage ◽  
The Family ◽  
Stage Process ◽  
Family Home ◽  
The Law ◽  
The Many

This chapter discusses a form of ‘implied’ co-ownership—the situation in which the law recognizes that co-ownership in a property has arisen, even though this is sometimes far from the intention of the parties. It looks at how implied co-ownership arises, either through a resulting or constructive trust. It discusses in detail the two-stage process that gives rise to the court identifying that the existence of a common intention constructive trust has been established, and looks at how the courts have considered this process over many years. It then considers how the court approaches quantification of shares in the property. Finally it looks at the many proposals for reform in this area of law.

Sign in / Sign up

Export Citation Format

Share Document