Exclusion and restriction of powers TOLATA 1996 s. 8
TOLATA 1996 s. 8: the trust instrument can exclude or restrict trustees' powers under s.6 and s.7, except for charitable, ecclesiastical or public trusts.
Sections 6 and 7 do not apply in the case of a trust of land created by a disposition in so far as provision to the effect that they do not apply is made by the disposition. If the disposition creating such a trust makes provision requiring any consent to be obtained to the exercise of any power conferred by section 6 or 7, the power may not be exercised without that consent. Subsection (1) does not apply in the case of charitable, ecclesiastical or public trusts. Subsections (1) and (2) have effect subject to any enactment which prohibits or restricts the effect of provision of the description mentioned in them.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This section lets the trust deed (the document that created the trust) say that the trustees' general powers under sections 6 and 7 do not apply. Those powers include selling, managing, and partitioning the trust land. If the deed says they don't apply, the trustees cannot use them.
If the trust deed requires someone's consent before using those powers – for example, consent from a beneficiary or a third party – then the trustees must get that consent. The power cannot be exercised without it.
However, this rule does not apply to charitable, ecclesiastical, or public trusts. Those trusts are treated differently. Also, any other law that already restricts or prohibits such exclusions or consent requirements will override this section.
When it applies
- A trust deed for a family home says the trustees cannot sell the land unless all adult beneficiaries consent.
- A will creating a trust for grandchildren excludes the power to partition the land, so the trustees must keep it as a single property.
- A charitable trust tries to use this section to limit its trustees' powers, but the section does not apply to it.
- A trust deed requires the settlor's spouse to consent before any sale of the trust land.
- A trust created by a deed that entirely removes the trustees' power to manage the land, leaving them only as passive holders.
What this section does not say
- This section does not apply to trusts created by operation of law (e.g., resulting or constructive trusts) – only to trusts created by a disposition (a deed or will).
- It does not allow exclusion of the trustees' fiduciary duties or other statutory obligations beyond sections 6 and 7.
- It does not affect other powers under the same Act, such as delegation under section 9 or duties under section 9A.
- People might think it allows any restriction, but the section is subject to other enactments that may limit or prevent such exclusions.
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This page reproduces the text of TOLATA 1996 s. 8 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.