These are the notes that I used to revise for my Land Law exam, in which I scored a good First Class mark. They are condensed and structured to make answering problem questions particularly easy, giving a brief outline to all the key cases and legislation in this area.
- Whenever two or more people have interests in property, interests are held under a trust of land.
- Rights can be either
o CONCURRENT: Property purchased by 2+ people at same time, rights are concurrent. They hold
the legal title for themselves on trust. or
o SUCCESSIVE: Property held by one or more persons for their lifetime with property passing to one
or more persons on their death. (Eg I leave my house to my son for life then my grandson.)
The Old Law
- Today, all trusts of land governed by Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
- Before TOLATA, where land was co-owned took effect as either
o A strict settlement or
o A trust for sale.
The Strict Settlement
- Trust comprising land which gave effect to successive interests and governed by Settled Land Act 1925.
Since 31 Dec 1996, no new strict settlements can be created. However those already created before then
still governed by SLA 1925.
- Strict settlement came into existence in two circumstances:
o 1. Where limited successive equitable interests were carved out of ownership of a legal estate in
land.
o 2. Where an absolute (as distinct from limited) interest in land was conferred on a grantee who
was subject to some disability, liability or contingency which qualified his capacity or entitlement
to hold such an interest.
So either it applied where there were people entitled in succession to the property or it
applied when beneficiary could not hold the land because of some disability or
contingency.
CAN STRICT SETTLEMENT STILL EXIST?
- Made pre 1996 will continue until no land left in the settlement.
CRITICISM OF STRICT SETTLEMENT
- Complicated method of creation; two separate documents, vesting deed and trust instrument had to be
used.
- Overlap of function between tenant for life and trustees.
The Trust for sale
- Before 1996 arose in number of situations under statute:
o 1. Where two or more concurrent interests held in property took effect as trust for sale. Could
arise expressly or be implied. Under s.36(1) LPA 1925 TFS would be implied where JT of legal
estate. Equitable state would not matter.
Bull v Bull 1955: mum and son jointly owned property. Unequal shares paid so resulting
trust. ‘All tenancies in common since 1925 are equitable only and take effect behind a
trust for sale.
o 2. Always imposed where person died interstate (without making valid will).
o 3. Also imposed where interests successive. Generally would only take effect if settlor expressly
stipulated this but courts also prepared to imply this into some provisions.
- Trustees have power to postpone sale under s.25 LPA 1925.
- Re Mayo 1943: Disagreement amongst trustees whether land should be sold. Two wanted to retain, other
sold. Court ordered sale despite majority. Held under a trust for sale main purpose was to ensure sale of
land and had to be a justifiable reason why this should be postponed.
DOCTRINE OF CONVERSION (WHY RIGHTS IN MONEY AND NOT RIGHTS IN LAND?)
1
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