Q&As

A property is jointly owned and there is a declaration of trust setting out how the property is owned. One joint owner wishes to seek a sale of the property and there is a dispute as to the division of net sale proceeds. Should an application under the Trusts of Land and Appointment of Trustees Act 1996 be commenced under Part 7 or Part 8 of the Civil Procedure Rules 1998?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 05/03/2021

The following Family Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • A property is jointly owned and there is a declaration of trust setting out how the property is owned. One joint owner wishes to seek a sale of the property and there is a dispute as to the division of net sale proceeds. Should an application under the Trusts of Land and Appointment of Trustees Act 1996 be commenced under Part 7 or Part 8 of the Civil Procedure Rules 1998?

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) affords the court wide powers to deal with trusts of land, including to make a declaration as to the beneficial ownership of the property, to regulate its occupation, to order a sale, and to conduct an equitable account of the dealings of the parties. The court’s powers are primarily contained in TOLATA 1996, s 14, with the court having regard in particular to the factors set out in TOLATA 1996, s 15 when determining whether to make an order.

The Civil Procedure Rules 1998 (CPR) apply to TOLATA 1996 proceedings. There is a common misconception that TOLATA 1996 claims must be issued using the CPR Part 8 procedure, by reference to CPR 64.2–3, although these provisions do not strictly apply so as to require the use of CPR Part 8.

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