Sale of Co-Owned Land
Sale Between Beneficiaries
Between co-owners, must be a joint tenancy as you cannot sever
the legal estate. If you were beneficial joint tenants it must end up
50/50. Can only contend where the interests are equal. Basically an
issue of the exercise of the trustees power under TLATA.
Trustees can sell, but one may not want to, function of court is to
order sale.
TLATA s15 – application by any person intended
o Factors which court should consider: settlor’s intentions,
purposes for which the property is held, welfare of any minor
expected to use as home, interests of any secured creditor
and wishes of any adult beneficiary.
Application for Sale by Creditors
Considered under s15 TOLATA – in applying this section
responsibility lies with judge to determine how much weight to
afford the different factors listed in the provision and all other
relevant matters.
Prior to TOLATA – power lay under s30 LPA 1925, sale was ordered
unless circumstances were exceptional – Re Citro
o Assumption that interests of the creditors would prevail over
all other interests unless the circumstances were extremely
unusual e.g. very small mortgage compared to house value,
house being adapted to suit disabled child’s needs – basic
principle that the bank always wins, pro-lender law.
Mortgage Corporation v Shaire
o Mrs Shaire and Mr Fox were joint legal owners of their home.
Mr Fox forged S’s signature to secure mortgages over the
house, as a result of the forgery these only took effect against
his beneficial share which the court assessed at being 25%.
Following his death the mortgagee sought sale of the house.
o S15 changed the law in relation to sale by creditors – no trust
for sale in 1996 Act, court now differs in its approach between
cases where one co-owner is bankrupt and cases where one
co-owner charged his interest.
o Court has greater flexibility than it did before, certain factors
listed in s15 must be taken into account and some other
factors may be relevant. Once all relevant factors are
identified the court decide what weight they should give
particular factors.
o In this case – mortgage would be converted into a loan on
which Mrs S would pay interest pending any future sale.
Edwards v Lloyds TSB Bank
o Mr and Mrs Edwards were co-owners of their home. Following
separation Mrs Edwards remained in occupation of the home
with their children. Mr Edwards had forged his wife’s signature
on a mortgage of the property, which therefore only took
Sale Between Beneficiaries
Between co-owners, must be a joint tenancy as you cannot sever
the legal estate. If you were beneficial joint tenants it must end up
50/50. Can only contend where the interests are equal. Basically an
issue of the exercise of the trustees power under TLATA.
Trustees can sell, but one may not want to, function of court is to
order sale.
TLATA s15 – application by any person intended
o Factors which court should consider: settlor’s intentions,
purposes for which the property is held, welfare of any minor
expected to use as home, interests of any secured creditor
and wishes of any adult beneficiary.
Application for Sale by Creditors
Considered under s15 TOLATA – in applying this section
responsibility lies with judge to determine how much weight to
afford the different factors listed in the provision and all other
relevant matters.
Prior to TOLATA – power lay under s30 LPA 1925, sale was ordered
unless circumstances were exceptional – Re Citro
o Assumption that interests of the creditors would prevail over
all other interests unless the circumstances were extremely
unusual e.g. very small mortgage compared to house value,
house being adapted to suit disabled child’s needs – basic
principle that the bank always wins, pro-lender law.
Mortgage Corporation v Shaire
o Mrs Shaire and Mr Fox were joint legal owners of their home.
Mr Fox forged S’s signature to secure mortgages over the
house, as a result of the forgery these only took effect against
his beneficial share which the court assessed at being 25%.
Following his death the mortgagee sought sale of the house.
o S15 changed the law in relation to sale by creditors – no trust
for sale in 1996 Act, court now differs in its approach between
cases where one co-owner is bankrupt and cases where one
co-owner charged his interest.
o Court has greater flexibility than it did before, certain factors
listed in s15 must be taken into account and some other
factors may be relevant. Once all relevant factors are
identified the court decide what weight they should give
particular factors.
o In this case – mortgage would be converted into a loan on
which Mrs S would pay interest pending any future sale.
Edwards v Lloyds TSB Bank
o Mr and Mrs Edwards were co-owners of their home. Following
separation Mrs Edwards remained in occupation of the home
with their children. Mr Edwards had forged his wife’s signature
on a mortgage of the property, which therefore only took
