Commentary

I5.211A Rights of occupation under TOLATA 1996

IHT, trusts and estates

I5.211A Rights of occupation under TOLATA 1996

I5.211A Rights of occupation under TOLATA 1996

General principles

The Trusts of Land and Appointment of Trustees Act 1996, s 12 (TOLATA 1996) confers on any 'beneficiary who is beneficially entitled to an interest in possession in land subject to a trust of land' a right of occupation of the land if certain other conditions are fulfilled. The main requirements are that the land should be available and suitable for occupation by the beneficiary (Trusts of Land and Appointment of Trustees Act 1996, s 12).

This situation most commonly arises between co-owners who hold the land as bare trustees for themselves. However, it also applies to express trusts such as qualifying interests in possession (QIIP).

Where two or more beneficiaries have a right of occupation of the same land, the Trusts of Land and Appointment of Trustees Act 1996, s 13 empowers the trustees to exclude or restrict the rights of occupation of one or some (but not all) of them, and to impose reasonable conditions on beneficiaries whose rights of occupation are not restricted or excluded. These could include paying compensation to the excluded beneficiary, or forgoing benefits under the trust in favour of the excluded beneficiary.

Termination of rights

A problem raised by the powers under the Trusts of Land and Appointment of Trustees Act 1996, s 13 is whether the exercise of the power to exclude one beneficiary in favour of another might cause one interest in possession to terminate and another to become an interest in all or a

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