TOLATA 1996 s. 7

Section 7 TOLATA 1996: dividing co-owned land instead of selling it

Section 7 TOLATA 1996 lets trustees of land partition it between beneficiaries absolutely entitled in undivided shares, with equality money and each beneficiary's consent.

Official text TOLATA 1996 s. 7 — United Kingdom

The trustees of land may, where beneficiaries of full age are absolutely entitled in undivided shares to land subject to the trust, partition the land, or any part of it, and provide (by way of mortgage or otherwise) for the payment of any equality money. The trustees shall give effect to any such partition by conveying the partitioned land in severalty (whether or not subject to any legal mortgage created for raising equality money), either absolutely or in trust, in accordance with the rights of those beneficiaries. Before exercising their powers under subsection (2) the trustees shall obtain the consent of each of those beneficiaries. Where a share in the land is affected by an incumbrance, the trustees may either give effect to it or provide for its discharge from the property allotted to that share as they think fit. If a share in the land is absolutely vested in a minor, subsections (1) to (4) apply as if he were of full age, except that the trustees may act on his behalf and retain land or other property representing his share in trust for him. Subsection (1) is subject to sections 21 (part-unit: interests) and 22 (part-unit: charging) of the Commonhold and Leasehold Reform Act 2002.

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 7 is the alternative to a sale that co-owners rarely know exists. Where beneficiaries of full age are absolutely entitled in undivided shares to land subject to the trust, the trustees may partition the land - physically divide it - and provide, by mortgage or otherwise, for the payment of any equality money to even up shares that cannot be made exactly equal on the ground. They then give effect to the partition by conveying the partitioned land in severalty in accordance with the beneficiaries' rights.

The control is in subsection (3): before exercising the power, the trustees must obtain the consent of each of those beneficiaries. Partition is therefore consensual between the beneficiaries even though the power belongs to the trustees. Where a beneficiary will not consent, the route is an application to the court under section 14, which can make orders relating to the exercise of the trustees' functions.

Subsection (4) deals with a share that is subject to a mortgage or other incumbrance: the trustees may give effect to it or provide for its discharge out of the property allotted to that share. Subsection (5) allows partition where a share is vested in a minor, with the trustees acting on the minor's behalf and holding the allotted property in trust. Whether partition is practical at all depends entirely on the land - a field or a large plot may divide sensibly; a single house almost never does, which is why most co-ownership disputes end in a sale rather than a division.

When it applies

  • Siblings who have inherited a plot of land or a farm and want to take a piece each rather than sell.
  • Co-owners of a large garden or paddock who can agree a physical division.
  • A property held for several beneficiaries where one wants their share separated out.
  • Working out whether one owner can be compelled to accept a division instead of a sale.
  • A partition where one part is worth more and equality money must be raised.

What this section does not say

  • It does not let the trustees divide land over a beneficiary's objection. Subsection (3) requires the consent of each beneficiary absolutely entitled.
  • It does not apply where the beneficiaries are not absolutely entitled in undivided shares - for example where interests are successive rather than concurrent.
  • It is not a way to divide a house. Partition is a physical division of land, and a single dwelling ordinarily cannot be split.
  • It is not the court's power. Where consent is refused, the application is made under section 14 and decided by reference to section 15.
  • It does not resolve who owns what share. That is a question of beneficial entitlement, which section 14 can be asked to declare.

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

Two siblings inherit eight acres of rough grazing with a track along one boundary. One wants to keep a piece and build eventually; the other wants the money now. Neither wants to sell the whole thing to a stranger.

How the wording applies

Section 7 lets the trustees physically divide land held for beneficiaries of full age absolutely entitled in undivided shares, and provide equality money where the two halves cannot be made equal on the ground. The fact that decides whether this route is open at all is subsection (3): the consent of each of those beneficiaries is required, so partition is consensual even though the power belongs to the trustees. Where consent is refused, the route is a section 14 application instead.

How the parties settled it

The siblings agree a division line drawn by a jointly instructed surveyor, with the sibling taking the roadside portion paying an equality sum fixed by that valuation, and each meeting half the survey and conveyancing cost.

Illustrative example

A family holds a large garden plot behind two houses for three beneficiaries. One wants their share separated out so they can sell it independently; the other two are content as they are but do not object in principle.

How the wording applies

The power reaches land held for beneficiaries absolutely entitled in undivided shares, and subsection (4) deals with a share subject to a mortgage - the trustees may give effect to it or provide for its discharge out of the property allotted to that share. The fact that has to be established before any of this is reached is that the interests really are concurrent and absolute rather than successive, because the section does not apply where they are not.

How the parties settled it

All three consent in writing to a division on plans prepared at the departing beneficiary's expense, with a right of way reserved over the access strip for the remaining two.

Related sections

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 TOLATA 1996 s. 12 Right to occupy trust land: TOLATA 1996 s. 12

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This page reproduces the text of TOLATA 1996 s. 7 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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