TOLATA 1996 s. 12

Right to occupy trust land: TOLATA 1996 s. 12

TOLATA 1996 s. 12 gives a beneficiary with an interest in possession a right to occupy trust land if held for that purpose, unless unavailable or unsuitable.

Official text TOLATA 1996 s. 12 — United Kingdom

A beneficiary who is beneficially entitled to an interest in possession in land subject to a trust of land is entitled by reason of his interest to occupy the land at any time if at that time— the purposes of the trust include making the land available for his occupation (or for the occupation of beneficiaries of a class of which he is a member or of beneficiaries in general), or the land is held by the trustees so as to be so available. Subsection (1) does not confer on a beneficiary a right to occupy land if it is either unavailable or unsuitable for occupation by him. This section is subject to section 13.

Text in force at .

Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.

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What it actually says

Section 12 is the starting point in every argument about who gets to stay in a co-owned home. A beneficiary beneficially entitled to an interest in possession in land subject to a trust of land is entitled, by reason of that interest, to occupy the land at any time if at that time either the purposes of the trust include making the land available for his occupation - or for the occupation of a class he belongs to, or of beneficiaries in general - or the land is held by the trustees so as to be so available.

That is a right derived from the beneficial interest itself, not from any agreement. Where an unmarried couple buy a house together, each is both trustee and beneficiary and each has a section 12 right; neither is a licensee of the other, and neither can simply be told to leave.

Subsection (2) is the qualification that does the work in practice. The right does not arise if the land is either "unavailable or unsuitable for occupation by him". Unavailable covers land that is let out or otherwise not free to be occupied. Unsuitable is judged against the particular beneficiary and the particular property - suitability for this person, given their circumstances, rather than in the abstract. Subsection (3) then makes the whole section subject to section 13, which lets trustees exclude or restrict the right where two or more beneficiaries would otherwise be entitled.

When it applies

  • An unmarried couple who have separated and both want to stay in the jointly owned home.
  • One co-owner who has moved out and now wants to move back in.
  • Beneficiaries of a family trust arguing about who may live in the trust house.
  • A property bought as an investment and let out, where a beneficiary claims a right to occupy it.
  • A co-owned home that no longer suits one owner's needs after a change in health or family.

What this section does not say

  • It does not decide who owns what. The size of the beneficial interests is a separate question, which the court can be asked to declare under section 14.
  • It does not give an exclusive right. Where two or more beneficiaries qualify, the position is governed by section 13, not by who got there first.
  • It does not apply to a beneficiary without an interest in possession.
  • It does not create a right to occupy land that is let, being sold, or otherwise unavailable - subsection (2) says so.
  • It is not the same as matrimonial home rights. Occupation rights between spouses and civil partners come from the Family Law Act 1996, and financial remedy powers on divorce come from the Matrimonial Causes Act 1973.

Worked examples

Invented situations, written to show how the wording bites. They are not real cases, not judgments and not precedent, and nothing here predicts what would happen in yours.

Illustrative example

An unmarried couple bought a flat together five years ago, both on the title. They have separated. One has been paying the mortgage since and tells the other they must move out because they are the one paying.

How the wording applies

The right to occupy comes from the beneficial interest itself, not from any agreement and not from who pays: each of them is both trustee and beneficiary, and neither is the other's licensee. The fact the right turns on is whether the purposes of the trust include making the land available for occupation - which, where a couple bought a place to live in together, they plainly did. Subsection (2) then removes the right only where the land is unavailable or unsuitable for that particular person.

How the parties settled it

They agree one will stay for six months while the other finds somewhere, with the mortgage and outgoings shared in proportion to their agreed shares, and the flat put on the market at the end of that period.

Illustrative example

Two siblings inherit their late parent's house as tenants in common. One has lived there for years; the other now wants to move in because their own housing has fallen through.

How the wording applies

A beneficiary entitled to an interest in possession has a section 12 right to occupy where the purposes of the trust include occupation or the land is held so as to be available for it. The fact that decides whether the returning sibling can insist is subsection (2)'s 'unsuitable' limb, which is judged against this beneficiary and this property rather than in the abstract - and, where two people both qualify, the position is governed by section 13 rather than by who is already there.

How the parties settled it

They agree the returning sibling occupies the self-contained ground floor for twelve months, sharing outgoings equally, and both agree to obtain a valuation with a view to one buying the other out at the end of it.

Related sections

TOLATA 1996 s. 13 Exclude co-owners & pay occupation rent: TOLATA 1996 s. 13 TOLATA 1996 s. 14 Force house sale or declare interest: TOLATA 1996 s. 14 TOLATA 1996 s. 15 Intentions, minor welfare, creditors: TOLATA 1996 s. 15

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We copy this text from the official publisher and re-check it against that source on every page load, but we cannot guarantee it is complete, current or free of error, and we accept no liability for any reliance on it. An amendment can take effect before a consolidation catches up. The publisher's own copy is linked below; where the two differ, it is the official one that counts.

This page reproduces the text of TOLATA 1996 s. 12 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.

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