Who Can Apply Under TOLATA 1996 s.14?
Section 14 TOLATA 1996 allows applications by: (a) a trustee of land; (b) any person with a beneficial interest in trust land — including constructive trust beneficiaries whose name is not on the legal title; (c) a creditor with a charging order over a beneficial interest; (d) a trustee in bankruptcy of a beneficial owner. TOLATA does not apply in matrimonial financial remedy proceedings (MCA 1973 governs instead). Applications are made via Part 8 (undisputed facts) or Part 7 (disputed facts, including the size of beneficial interests).
The Court's Discretion — s.15 Factors
Under s.15, the court must consider: (a) the purpose for which the trust was created (joint investment; family home — different outcomes); (b) the welfare of any minor in occupation; (c) the interests of secured creditors; (d) the intentions of the person who created the trust. For commercial investment property with no residential occupation, courts routinely order sale if one co-owner or a creditor applies. For co-owned family homes with children, sale may be delayed for welfare reasons but is almost always eventually ordered.
Charging Orders and TOLATA Applications
Process: judgment → charging order (Form N379) → interim charging order → HMLR registration → final charging order → TOLATA s.14 application for sale. For investment property (no residential occupation), courts almost invariably order sale. Non-debtor co-owners can resist by offering to buy the charged share at market value. On bankruptcy, s.335A Insolvency Act 1986 applies — after 1 year, the court must order sale unless exceptional circumstances; the bankrupt's share vests in the trustee in bankruptcy.
Quantification of Beneficial Interests — Stack v Dowden and Declarations of Trust
Where beneficial interests are disputed: express declaration of trust (e.g. Form TR1 box 11) is conclusive — Goodman v Gallant [1986]. Where there is no express declaration: Stack v Dowden [2007] starting point is 50:50 for joint legal owners; departure requires clear evidence of different common intention (financial contributions; mortgage payments; outgoings; conduct). Kernott v Jones [2011]: common intention can evolve over time. Practical protection: always execute an express Declaration of Trust on co-ownership to prevent litigation.