Trusts of Land and Appointment of Trustees Act 1996  (TLATA 1996) Claims

 In Trusts

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ToLATA claimsWhere the deceased owned a property in his sole name, but some other person claims to have an interest in it, or some other person owns a property in their name in which the estate claims an interest, then the Executors may find themselves on one side or another of a claim pursuant to the TLATA 1996 in order to determine the precise extent of a party’s beneficial interest, and to seek or resist an order for sale. This article aims to bring together current thinking from case law on such cases.

The basic premise is the presumption that the beneficial title follows the legal title, but of course in some cases that presumption can be rebutted. The leading cases of Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53 are still the starting point for any advice given on this issue, but this article aims to identify the latest cases to see how that guidance is being implemented. This area of law has been the subject of a gradual shift away from a strict adherence to financial contributions to the purchase price of a property (Lloyds Bank v Rossett [1990] UKHL 14) to a much more discretionary and broad brush exploration of “the whole course of dealing”, which means looking at who paid the bills, who paid for the property improvements, or who was looking after the children or the aged parent to allow the other partner to work and earn.

Thompson v Hurst [2012] EWCA 1752

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In this case the court found that there had been no common intention, express or inferred, and so the court had to have regard to “the whole course of dealing” between the parties in relation to the property in order to make findings as to their respective shares.

Singh v Singh & Anor. [2014] UKHC 1060

Was property held according to Hindu and Sikh custom (Mitakshara)? In this case the court was being asked to take account not just of the conversations and the course of dealing between the relevant family members, but also the cultural custom of sharing property ownership in the Sikh community. In this case, that argument did not succeed.

Official Receiver for Northern Ireland v Snodden & Anor[2014] NIMaster 5. Where a sole beneficial owner transferred her property into joint names with her partner only in order to obtain a more favourable mortgage she was able to rebut the presumption of joint beneficial ownership.

Bank of Scotland plc v Brogan & Anor. [2012] NICh 21

Per Deeny J:

The dealings between the parties, the whole course of which I should take into account, have several further points of interest. The fact that he did not tell her about the mortgage loan seems to me wholly consistent with her co-ownership of the property. He was trenchantly apologetic for the mess he had made of things and it seems clear that he believed that she would have prevented him mortgaging the property if he had come to her with the proposal… That seems to me consistent with a view that she had the right to do so, in part because it was her house at least as much as his.

Aspden v Elvy [2012] EWHC 1387 provides a fascinating analysis of a more than usually complicated arrangement between cohabitees and relies on the useful dicta of Sir John Chadwick in James v Thomas: [2007] EWCA Civ 1212 to find that a constructive trust can arise many years after the property has been purchased.

Conclusion

In the event that these issues arise during administration the immediate duty is to protect the claim by way of securing a restriction at the Land Registry or an undertaking from the legal owner not to sell or charge the property. Next, try to obtain the original conveyancing file. Then, take counsel’s advice!

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