598 Property Law

reaches 16 years – a purely arbitrary date – or it may become appropriate to do so much sooner, for example on the mother’s remarriage, or on it becoming financially possible for her to buy the father out. In such circumstances, it will probably be wiser simply to dismiss the application while indicating the sort of circumstances which would, prima facie, justify a further application. The ensuing uncertainty is unfortunate but, under this section, the court has no power to adjust property rights or to redraft the terms of the trust. Ideally, the parties should now negotiate a settlement on the basis that neither of them is in a position to dictate terms. We would therefore dismiss the father’s appeal, but would vary the order to dismiss the application on the mother’s undertaking to discharge the liability under the mortgage, to pay the outgoings and maintain the property, and to indemnify the father so long as she is occupying the property.

These matters are now governed by sections 14–15 of the Trusts of Land and Appointment of Trustees Act 1996, but, as the purposes behind the trust are still relevant to rights of occupation under section 12 and to the exercise of the court’s discretion under section 14, it is generally accepted that the jurisprudence of ‘collateral purpose’ will continue to provide guidance in disputes arising under the 1996 Act (see Law Commission, Transfer of Land: Trusts of Land (Law Commission Report No. 181, 1989) paragraph 12.9).

Notes and Questions 16.6

Consider the following notes and questions both before and after reading Jones v. Challenger [1961] 1 QB 176, Re Evers [1980] 1 WLR 1327, Re Citro [1990] 3 WLR 880, Abbey National plc v. Moss [1994] 1 FLR 307, Mortgage Corp. Ltd v. Shaire

[2001] Ch 743, Re Holliday [1981] Ch 405, White v. White [2003] EWCA Civ 924, section 30 of the Law of Property Act 1925 (now repealed), sections 14–15 of the Trusts of Land and Appointment of Trustees Act 1996, sections 335A–337 of the Insolvency Act 1986 and the cases listed below, either in full or as extracted at www.cambridge.org/propertylaw/.

1Who was entitled to apply to the court for an order under section 30 of the 1925 Act?

2By what criteria were the courts guided in exercising this discretion? What was the strength of the sale presumption of the trust for sale? Were different criteria applicable to different types of application?

3What is the extent of the court’s jurisdiction under the 1996 Act? What has happened to the preference for sale?

4What role will the case law on the repealed section 30 have in the interpretation of the 1996 Act? What is the significance of section 15 of the 1996 Act? What is the position of secured creditors?