Enforcement issues for trust property
Produced in partnership with Jonathan Titmuss of Hardwicke
Enforcement issues for trust property

The following Restructuring & Insolvency practice note Produced in partnership with Jonathan Titmuss of Hardwicke provides comprehensive and up to date legal information covering:

  • Enforcement issues for trust property
  • Trusts of land
  • Joint tenancy and tenancy in common—a recap
  • How to spot situations where there is a trust
  • Why does this matter?
  • How to overreach the beneficial interest—the two trustee rule
  • Joint proprietors—two receivers
  • Joint proprietors—single receiver
  • Areas of difficulty
  • Mortgagor is not the borrower (third party security)
  • More...

This Practice Note considers some issues that may arise in the context of the enforcement of security by the appointment of a receiver over property that is subject to a trust.

It also considers trust issues in the context of security granted by a partnership. Some banks have reported problems when using their standard form security documentation where their customer is a partnership, and the secured property is either occupied by the partnership or is a partnership asset. Often potential issues for enforcement have not been considered when taking the security, and their standard form documentation has not been adapted to deal with this.

Trusts of land

The Land Register maintained by HM Land Registry records the ownership of the legal estate in the land, which is the ‘paper title’, or rights of the proprietors registered at HM Land Registry to sign a valid transfer document transferring ownership to another person.

The Land Register does not record the beneficial (equitable) interest and accordingly the Land Registrar is not affected with notice of a trust. The beneficial interest is the economic interest in the property entitling the owner (beneficiary) to the eventual receipt from the registered proprietors (trustees) of net rent and income until sale and net proceeds from a subsequent sale.

A trust of land can arise in several ways, including:

  1. a trust expressly created in writing—writing is required

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