Lecture 13 – Disputes in Co-Ownership
Forgery does not affect the legal title. Only affects the beneficial interest of the fraudster. Mortgage only attaches in equity to the
beneficial interest of the fraudster. Note that a trustee or any person who ‘has an interest in the property subject to a trust of land’
(Section 14(1)) can apply to the court. E.g. even a creditor.
S.15: The court must consider s.15 criteria in making their decision. If dispute re-occupation, court must have regard to ‘the
circumstances and wishes of each of the beneficiaries.
Creditors have to use s.14(1), there are specific rules if one of the beneficiaries is bankrupt.
I. Section 14 – applications for order
(1) Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court
for an order under this section
(2) On an application for an order under this section the court may make any such order (not just about sale etc.)—
(a) relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain
the consent of, or to consult, any person in connection with the exercise of any of their functions), or
(b) declaring the nature or extent of a person's interest in property subject to the trust, as the court thinks fit.
(3) The court may not under this section make any order as to the appointment or removal of trustees.
(4) The powers conferred on the court by this section are exercisable on an application whether it is made before or after the
commencement of this Act.
The court can make any order.
II. Section 15 – matters relevant in determining applications
The court must consider, have regard to:
- the intentions of the person who created the trust
- the purposes for which the property subject to the trust is held
- the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home
- the interests of any secured creditor of any beneficiary
See slides. Section 14 or 15 don’t apply where there is bankruptcy. Note that above there is no hierarchy, A through to D they are all
equal, none of them are more important than the others. This was the point of ToLATA in the first place. But we will come to see that
the courts have interpreted this differently.
See subsection 2, extra criterion in every other situation other than occupation rights. See subsection 4, section 14 and 15 do not apply
if the Insolvency Act applies, i.e. bankruptcy.
See case of White v White:
CA discussed the meaning of 15.1 criteria.
Couple buy home for £50,000. Become beneficial JT, i.e. they both take legal title and both hold the beneficial interest.
Extend house etc. All goes south. What is to be done with the property? Unmarried (if married the family court has much
broader jurisdiction); so, what will happen to the property? One of the questions was: was the purpose of the trust to
provide a home for the children? Children born after the property was bought. Court held that you had to look at the
intentions of the people who created the trust, and therefore their common intention.
Court held that the "intentions" for the purposes of s.15(1)(a) were the intentions of all the persons who had created the trust,
and they had to be intentions which those parties had in common. The "intentions" meant the parties' intentions prior/ before
Forgery does not affect the legal title. Only affects the beneficial interest of the fraudster. Mortgage only attaches in equity to the
beneficial interest of the fraudster. Note that a trustee or any person who ‘has an interest in the property subject to a trust of land’
(Section 14(1)) can apply to the court. E.g. even a creditor.
S.15: The court must consider s.15 criteria in making their decision. If dispute re-occupation, court must have regard to ‘the
circumstances and wishes of each of the beneficiaries.
Creditors have to use s.14(1), there are specific rules if one of the beneficiaries is bankrupt.
I. Section 14 – applications for order
(1) Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court
for an order under this section
(2) On an application for an order under this section the court may make any such order (not just about sale etc.)—
(a) relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain
the consent of, or to consult, any person in connection with the exercise of any of their functions), or
(b) declaring the nature or extent of a person's interest in property subject to the trust, as the court thinks fit.
(3) The court may not under this section make any order as to the appointment or removal of trustees.
(4) The powers conferred on the court by this section are exercisable on an application whether it is made before or after the
commencement of this Act.
The court can make any order.
II. Section 15 – matters relevant in determining applications
The court must consider, have regard to:
- the intentions of the person who created the trust
- the purposes for which the property subject to the trust is held
- the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home
- the interests of any secured creditor of any beneficiary
See slides. Section 14 or 15 don’t apply where there is bankruptcy. Note that above there is no hierarchy, A through to D they are all
equal, none of them are more important than the others. This was the point of ToLATA in the first place. But we will come to see that
the courts have interpreted this differently.
See subsection 2, extra criterion in every other situation other than occupation rights. See subsection 4, section 14 and 15 do not apply
if the Insolvency Act applies, i.e. bankruptcy.
See case of White v White:
CA discussed the meaning of 15.1 criteria.
Couple buy home for £50,000. Become beneficial JT, i.e. they both take legal title and both hold the beneficial interest.
Extend house etc. All goes south. What is to be done with the property? Unmarried (if married the family court has much
broader jurisdiction); so, what will happen to the property? One of the questions was: was the purpose of the trust to
provide a home for the children? Children born after the property was bought. Court held that you had to look at the
intentions of the people who created the trust, and therefore their common intention.
Court held that the "intentions" for the purposes of s.15(1)(a) were the intentions of all the persons who had created the trust,
and they had to be intentions which those parties had in common. The "intentions" meant the parties' intentions prior/ before
