Co-ownership forms one of the most complex areas in land law. It requires constant updating over time as social structures and patterns of living evolve in society. This essay will discuss the many difficulties that regularly arise in this delicate area of the law for which there is no simple, all-encompassing solution. Specifically it will cover the common intention constructive trust and its development as well as the impact of the reform introduced by the Trust of Land and Appointment of Trustees Act 1996 (TLATA).
Cohabitation of property has generally always been regulated by statute. Much of the 20th century co-ownership was created under ‘trusts for sale’ regulated in the LPA 19251 that had been initially designed for older times. The trust for sale was therefore not a particularly effective method for co-ownership as society developed with an increase in women’s legal status and rights, particularly regarding familial and matrimonial arrangements.
Difficulties arose if these relationships broke down, as the trustees were under a duty to sell and had only a power to postpone that duty. Due to the doctrine of conversion, beneficiaries had no interest in the land and no right to occupy it. If one partner demanded the property to be sold, the other half would have difficulty in refuting, especially as the power to postpone required consent from both parties.2 Despite the courts developing the doctrine of continuing purpose that worked to prevent this,3 it was obvious that a full on reform was required to update the statute in this area. The Law Commission detailed the problems in a 1989 report4 which lead the way for the TLATA. TLATA has proven effective in addressing most of the statutory issues regarding establishment and regulation of a co-ownership in land that preceded it. S.1(1) sets out the new ‘trust of land’, which gives