TOLATA 1996 s. 15

Intentions, minor welfare, creditors: TOLATA 1996 s. 15

TOLATA 1996 s. 15 lists section 14 factors: creator intent, trust purpose, minor welfare, secured creditors, plus beneficiary wishes in specified applications.

Official text TOLATA 1996 s. 15 — United Kingdom

The matters to which the court is to have regard in determining an application for an order under section 14 include— the intentions of the person or persons (if any) who created the trust, the purposes for which the property subject to the trust is held, the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and the interests of any secured creditor of any beneficiary. In the case of an application relating to the exercise in relation to any land of the powers conferred on the trustees by section 13, the matters to which the court is to have regard also include the circumstances and wishes of each of the beneficiaries who is (or apart from any previous exercise by the trustees of those powers would be) entitled to occupy the land under section 12. In the case of any other application, other than one relating to the exercise of the power mentioned in section 6(2), the matters to which the court is to have regard also include the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in property subject to the trust or (in case of dispute) of the majority (according to the value of their combined interests). This section does not apply to an application if section 335A of the Insolvency Act 1986 (which is inserted by Schedule 3 and relates to applications by a trustee of a bankrupt) applies to it.

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 15 tells the court what to think about on a section 14 application, and the list is short enough to be worth reading closely. The matters include the intentions of the person or persons who created the trust; the purposes for which the property subject to the trust is held; the welfare of any minor who occupies or might reasonably be expected to occupy the land as his home; and the interests of any secured creditor of any beneficiary. The word is "include", so the list is not exhaustive, but these four are the framework of nearly every judgment.

The second and third items decide most family cases. The purpose for which a house was bought - as a home for a couple and their children rather than as an investment - can survive the relationship that produced it, and a court asked to order an immediate sale has to weigh whether that purpose still exists. The welfare of a minor living there is a listed matter in its own right, though notably not a paramount one: unlike section 1 of the Children Act 1989, this section makes a child's welfare a factor to be weighed, not the deciding consideration.

Subsections (2) and (3) add further matters depending on the type of application: for applications about the section 13 occupation powers, the circumstances and wishes of each beneficiary entitled to occupy; for other applications, the circumstances and wishes of beneficiaries of full age with an interest in possession, or of the majority by value of their combined interests. Subsection (4) removes the section entirely where the applicant is a trustee in bankruptcy, because section 335A of the Insolvency Act 1986 applies its own, harder, test.

When it applies

  • One co-owner wanting an immediate sale while the other is raising children in the house.
  • A property bought as a family home where the family has ended but the children are still at school.
  • A creditor seeking a sale where the debtor is one of two owners.
  • A house bought as an investment where neither party ever intended to live there.
  • Weighing the wishes of several beneficiaries with unequal shares.

What this section does not say

  • It does not make a child's welfare paramount. Subsection (1)(c) lists it as a matter to have regard to, which is a lower status than it has under section 1 of the Children Act 1989.
  • It is not an exhaustive list. The matters "include" those set out, so other circumstances can be relevant.
  • It does not rank the factors or tell the court how to weigh them against each other.
  • It does not apply on a trustee in bankruptcy's application. Subsection (4) hands those cases to section 335A of the Insolvency Act 1986.
  • It does not decide the shares. Beneficial entitlement is a separate question under section 14.

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

One former partner wants the jointly owned house sold immediately. The other is raising two children there, both settled in the local school, and cannot afford anything comparable nearby.

How the wording applies

The listed matters include the purposes for which the property is held and the welfare of any minor who occupies or might reasonably be expected to occupy it as a home. The fact that has to be faced honestly is the status of that second factor: a child's welfare is a matter to have regard to here, not the paramount consideration it is under section 1 of the Children Act 1989, so it is weighed against the other owner's wish to realise their capital rather than settling the question.

How the parties settled it

They agree the sale is deferred until the younger child finishes at their current school, with the resident parent meeting the mortgage and outgoings and the shares fixed now so the delay costs neither of them anything.

Illustrative example

Two friends bought a flat purely as an investment and let it out. They have fallen out and one wants to keep it for the rental income while the other wants the money.

How the wording applies

The first two listed matters - the intentions of those who created the trust and the purposes for which the property is held - do most of the work, and here they point in one direction: this was never a home, so the arguments that keep a family house intact are simply absent. The fact that decides it is the original purpose, which has not ended merely because the friendship has.

How the parties settled it

They agree a valuation and a six-month option for the one who wants to keep it to buy the other out at that figure, with the property sold on the open market if the option lapses.

The same problem elsewhere

The other legal systems in this collection answer the same everyday problem with their own provisions.

The comparison and these one-line summaries are in English.

Siblings inherited the house and one will not sell: what the law says in 7 jurisdictions

Read the full comparison →

Related sections

TOLATA 1996 s. 14 Force house sale or declare interest: TOLATA 1996 s. 14 TOLATA 1996 s. 12 Right to occupy trust land: TOLATA 1996 s. 12 TOLATA 1996 s. 13 Exclude co-owners & pay occupation rent: TOLATA 1996 s. 13

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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. 15 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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