The Changing Face of Trusts: The Trusts of Land and Appointment of Trustees Act 1996

Published date01 January 1998
Date01 January 1998
The Changing Face of Trusts: The Trusts of Land and
Appointment of Trustees Act 1996
L.M. Clements*
Since 1925, the conveyancing device of the trust for sale has become a central
part of English land law. One of the main policies of the 1925 legislation had
been to promote free alienability of land by making conveyancing easier. The
trust for sale was intended as one mechanism to achieve this by separating the
legal title from the equitable interests and, by the doctrines of conversion and
overreaching, to transfer the equitable interests to the proceeds of sale. It has,
however, become increasingly recognised that the mechanism of the trust for sale
is both complex and not well suited to contemporary society in which
matrimonial and cohabitation co-ownership are becoming increasingly common
and where sale is not the primary objective. Equally, the device of the strict
settlement of land belongs to a time long gone, when there was a dynastic
impulse in aristocratic families to maintain the land in the family for generations
to come. Today, the settlement has outlived its purpose and inheritance tax has
made it less attractive. The Trusts of Land and Appointment of Trustees Act
1996 (TLATA) has introduced significant reforms in relation to both concurrent
co-ownership and successive interests under a settlement of land. It replaces a
large part of the 1925 legislative provisions concerning joint ownership of land.
It was introduced by the Lord Chancellor as a ‘useful measure of law reform’,
and it has made changes to the law which were long overdue. Although
expressed in somewhat technical language, the Act has important implications in
the familiar matrimonial and quasi-matrimonial co-ownership situation. This note
outlines the changes which have been made by this legislation and addresses
some of the issues which it raises.
Why is the new legislation so important? This question can only be adequately
answered by reference to the problems which existed under the 1925 law. First of
all, as already indicated, the 1925 legislation relevant to co-ownership was very
complicated, even though it was a vast improvement upon pre-1925 law, which
was still based on the feudal structure of land law. Second, because of the strictures
of the Settled Land Act 1925 (SLA) it was relatively easy to trigger its provisions
accidentally, causing unnecessary complications and unintentionally giving to a
person the powers of sale of a tenant for life. Third, the trust for sale was
appropriate to a time when land was treated as an investment, with the emphasis on
its exchange value rather than its use value; hence the nomenclature trust for sale.
Today, when we are living in a property owning democracy with a large number of
matrimonial and co-habitation homes in co-ownership, such a conveyancing device
The Modern Law Review Limited 1998 (MLR 61:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
* Law School, University of Hull.
1 Lord Mackay, HL Deb vol 569 col 1717 1 March 1996.
2 The Act, which only extends to England and Wales, came into force on 1 January 1997: SI 1996 No

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