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Regulating Trusts Of Land Notes

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Regulating Trust of Land Occupation under TLATA 1996

When is there a right to occupy?
o S.12(1) Only beneficiaries with interests in possession can occupy - means that beneficiaries must be ascertainable
? (a) Purposes of trust must include occupation
? (b) Land held must be available for occupation
? (2) Land must also be suitable for occupation by beneficiary. o Smith: Do these condition have to be satisfied only at commencement of occupation? Or must they have to continue to be satisfied?
? Problem = if the latter view, what happens if some surprising event happens?

Purpose "changes" o E.g. that a house meant for joint occupation of a widowed mother and daughter becomes only occupied by daughter as mother goes and remarries and leaves?
? Can the purpose of the trust still be effective?

Availability changes o Section purports to confer right to occupy - unless snapshot view taken of trust only at time of creation
? Then to describe occupation as a right seems meaningless as it depends upon a continuing intention upon the part of the trustees.

Suitability of property changes o Chan v Leung [2003]:
? Held that this subsection looked not just at the property, but the personal characteristics and requirements of the beneficiary.
? Smith: suppose a widow has a life interest in a house - if she gets too old to look after house, can trustees insist she moves to more suitable accommodation?

Trustee control of the right to occupy o S.13(1): Trustees have power to determine the exercise of entitlements where two or more beneficiaries have right to occupy, but must allow at least one to occupy o S.13(2): Trustees can't
? (a) unreasonably restrict beneficiary's entitlement to land
? (b) restrict any right to an unreasonable extent

Rodway v Landy [2001]: Doctors co-own surgery. L suggests that split up practise by physically partitioning building equally.

Gibson LJ: Would make no sense if beneficiaries were all excluded from occupation of land o However, in a building which is able to be equally partitioned,
? the trustees should be able to exclude a beneficiary's entitlement to occupy one part +
vice versa

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