Lees pp. 517-544 Co-Ownership DISPUTES RELATING TO CO-OWNED LAND 2 Applications under section 14 TOLATA 1996 2 General approach under section 14-shift from section 30 Law of Property Act 1925 to section 14 TOLATA 1996 2 Re Citro [1991] Ch 142 2 The exceptional circumstances test now 3 TOLATA and widened discretion of the courts 3 1. Court is able to make an order for sale 3 2. Court is able to make an order for sale but put conditions onto that sale 3 3. Court is able to make an order regarding occupation of the property 3 4. Court is able to make a declaration regarding the equitable shares held by the respective parties WRT the property 3 5. Court can combine these powers and make a 'package' deal with resolves the totality of the parties' disputes 4 Mortgage Corporation v Shaire [2001] Ch 743 4 Who can make an application under section 14? Factors to be considered under section 14 5 5 1. The intentions of the person who created the trust at the time of creation-s 15(1)(a) 6 2. The purpose for which the trust is held at the time of litigation-section 15(1)(b) 7 3. Welfare of any children who occupy or who might occupy-s 15(1)(c) 7 00 8 First National Bank v Achampong [2003] EWCA - mortgagee's interests take priority over kids 4. Interests of the beneficiaries' secured creditors-s 15(1)(d) 10 Bank of Ireland v Bell [2001] 2 All ER (Comm) 920 10 Priority given to secured creditors 10 Probert 10 5. Circumstances and wishes of the majority of adult beneficiaries 11 Bankruptcy-section 335A Insolvency Act 11 Rights of occupation and occupation rent 13 Valuation of occupation rent under TOLATA 14 Priority disputes between co-owners and third parties 16 Overreaching 16 Requirements of overreaching Williams & Glyn's Bank Ltd v Boland [1981] 17 City of London Building Society v Flegg [1988] 17 Wishart v Credit and Mercantile Plc [2015] 17 16 Further analysis: The rights and wrongs of Wishart 18 HSBC v Dyche [2009] 19 Further analysis: Overreaching and good faith after Dyche 20 Consequences of no overreaching 20 Mortgages in situations pertaining to overreaching (in more detail) 22 Equitable mortgages 22 1
Disputes Relating to Co-Owned Land · Trustee's discretion = vital to dynamics b/w trustees & beneficiaries. · WRT land, this becomes critical given the statutory powers conferred through registered title. . Where the title to land is transferred and registered, the fact of that registration will give rise to a different set of problems than a transfer of land held on trust under the unregistered land rules. · General principles apply to the ways in which trustees should manage trust property and how they should use the owners' powers conveyed on them by s 23 LRA 2002 WRT registered land. · TOLATA kicks in to address deadlocks among trustees, beneficiaries and third parties. Applications under section 14 TOLATA 1996 S 14 TOLATA 1996 enables the court to make decisions WRT management of the