Law Com. 181: Reforming Trusts of Land

Publication Date01 Sep 1989
DOIhttp://doi.org/10.1111/j.1468-2230.1989.tb02622.x
AuthorAlain Pottage
REPORTS
LAW COM.
181:
REFORMING TRUSTS
OF
LAND
INTRODUCTION
PROPERTY lawyers seem to agree that the trust for sale has long been
an anachronism. The 1925 framework may, it is said, have been
appropriate to the sort of family investment schemes which were
common in the late nineteenth century, but home (co-)ownership has
flourished
so
much over the past 60 years that there is an urgent need
for a mechanism which is more suitable for the regulation of disputes
concerning the occupation of a family home. The inadequacy of the
existing scheme is seen to result in an unhealthy form of judicial
bri-
coluge,
requiring the adaptation
of
old concepts to new circum-
stances, and resulting in
a
lack of coherent and uniform reasoning. Of
the provisions of the Settled Land Act it is said that these have
become
so
out-dated as to be not merely redundant but positively
inconvenient.’
The Law Commission takes the view that matters have got out of
hand: the present regime is complex, artificial and impractical, and
the courts cannot, or should not, be left to work things out for them-
selves. It has accordingly published a Report2 containing proposals
for corrective reform. In general terms, the recommendation is that
the strict settlement and the trust for sale should be replaced with a
single statutory trust to cover both concurrent and successive inter-
ests in lapd. This would involve, first, a prohibition on the creation of
any new strict settlements3 and, second, a reworking
of
the existing
trust for sale
to
reflect the changed nature
of
co-ownership.Although
it
is
proposed that the doctrine of conversion should cease to apply,
what is recommended is in essence a modified and “beefed up” trust
for sale: to be implied where there is co-ownership of any kind. The
exercise is essentially one
of
modification. Rather than starting from
scratch, the Commission has chosen simply to build a series of
amendments into and around the existing provisions of the Law of
Property Act 1925. The principal aim of these modifications
is
to ren-
The main point is that the priority
of
the Settled Land Act in relation to successive
interests means that testators can inadvertently set up costly and troublesome strict
settlements.
Transfer of Land: Trusfs of Land,
(H.C.
391)
Law Com.
No.
181 (1989).
[I
should
acknowledge that
I
was, for a brief period, a Research Assistant at the Law Com-
mission. Although this role was not a policy making one, it did involve some editorial
work
on the draft
of
the Report].
In the words
of
the Law Commission, the strict settlement is to be “phased out.”
The precise formulation is that no more
land
should become subject to a strict settle-
ment. This proposal
is
designed to ensure that existing settlements cannot acquire
more land. Existing settlements will be otherwise untouched. (See para.
4.3
of
the
Re ort and clause
13
of
the draft Bill).
‘To
be called a “trust
of
land.”
683

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