5.2.2 Trustees in Land Lecture
This chapter of the guide on land law deals with trustees of land.
SECTION ONE: APPOINTMENT OF TRUSTEES
A trustee in land can be appointed by the beneficiaries as per s.19 of the Trustees of Land and Appointment of Trustees Act (TOLATA) 1996. The section only becomes applicable where no trustee is named in the original trust deed.
Beneficiaries also have powers of appointment and removal
SECTION TWO: POWERS OF TRUSTEE
The powers of trustees of land are many and varied. Trustees have the power to:
- Sell, lease or charge the legal estate in the trust land;
- Acquire freehold or leasehold land as per the Trustee Act 200 s.8;
- Partition the trust land between beneficiaries of full age where the beneficiaries are absolutely entitled to the trust land (TOLATA 1996, s.7(1));
- Exclude or restrict the occupation right of one or more (but not all) of the beneficiaries (TOLATA 1996, s.13(1));
- Apply for a court order resolving disputes over the trust land (TOLATA 1996, s.14(1)); and
- Delegate any of the trustees’ statutory functions to any one (or some, or all) of the beneficiaries of full age where they are entitled to an interest in possession in the trust land (TOLATA 1996, s.9(1)).
With all that being said, these powers cannot be exercised indiscriminately.
Rights of beneficiaries as against the trustees
Trustees of land do not, as we have seen, have an unfettered discretion in the exercise of their powers. This position has been enshrined in statute: TOLATA 1996, s.12(1).
Right of Occupation
The right to occupy under s.12(1) of TOLATA 1996 is subject to certain limitations and exemptions.
Other powers of beneficiaries relating to trustees
Right to: be consulted, require that consent be obtained, apply for a court order and an appropriate interest in the proceeds of capital.
SECTION THREE: BREACHES OF TRUST
When the disponee takes the legal title of a registered estate, they are not hindered by any limitation of the disponor’s powers where that limitation is not indicated by some entry in the disponor’s register of title or imposed by or under the s 26 Land Registration Act (LRA) 2002.
The consequences which flow from a breach of trust of land, when the land is unregistered, are similar to those of breaches of trust of registered land.
Judicial resolution of disputes over trust land
TOLATA 1996 provides various methods of resolution to disputes that arise in relation to trusts of land.
General principles regarding disputes over sale
Where a court is considering questions of whether or not the trust land is to be sold, the criteria are a ‘consolidation and rationalisation’ of all the jurisprudence developed under the Law of Property Act 1925, s.30 (A v B (1997)).
SECTION FOUR: TRUSTEES-IN-BANKRUPTCY
Where a trustee-in-bankruptcy seeks to order a sale of the land, the considerations in TOLATA 1996, s.15(1) become inferior. Instead, the interests of the creditor(s) become paramount (TOLATA 1996 s.15(4)).
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