Dear v Robinson & Anor

Under section 14 of the Trusts of Land and Appointment of Trustees Act 1996, the court may postpone an immediate sale of trust property where the relevant circumstances, beneficiaries’ wishes and the trust’s purposes make postponement appropriate. The court must consider the matters identified in section 15, including the intentions of the creators of the trust, the purpose for which the property is held and the interests of the beneficiaries. The court should avoid prescribing detailed long-term terms where material beneficial or proprietary issues remain unresolved. Terms of continued occupation, including occupation rent, may instead be remitted for determination by the court below.

The appeal arose from an order made by HHJ Rudd in the Southampton County Court on 3 March 2000 under section 14 of the Trusts of Land and Appointment of Trustees Act 1996, directing the immediate sale of property held in joint names and subject to a disputed declaration of trust.

Mr Dear initially opposed the sale but later discontinued his application for permission to appeal. Aaron Robinson, who claimed a beneficial interest under the declaration of trust, sought permission to appeal out of time and argued that the sale should be postponed. A material change occurred when Mr Dear acquired a right of pre-emption affecting the property. The central issue was whether an immediate sale remained appropriate and, if not, on what terms occupation should continue.

1. Mr Dear was granted leave to discontinue his application for permission to appeal. The decision below as to costs remained undisturbed, and no order for costs was made in his favour on the discontinued application.

2. Aaron Robinson was granted an extension of time and permission to appeal. His appeal was allowed and the order for immediate sale was reversed.

3. The acquisition by Mr Dear of the right of pre-emption materially changed the circumstances. The majority of the beneficiaries in value opposed an immediate sale, Mr Dear was not shown to require a capital sum, and the sale order could enable him to acquire the property at an advantageous price.

4. Those circumstances required the court to exercise its discretion under section 14 against an immediate sale. That course was consistent with the beneficiaries’ wishes and did not defeat the settlors’ intentions or the purpose of the trust. The court also noted a possible constructive-trust issue concerning Mr Dear’s holding of the right of pre-emption, because he was both trustee and beneficiary.

5. The court declined to impose detailed terms postponing sale until expiry of the right of pre-emption. The beneficial interests and the possible constructive trust remained unresolved, and it was undesirable to determine future financial arrangements in excessive detail. The matter was remitted to the County Court to determine the terms of Mr Dear’s continued occupation, including any occupation rent. The parties were given liberty to apply generally.

1. Southampton County Court: HHJ Rudd ordered the immediate sale of the property on 3 March 2000.
2. Court of Appeal (Civil Division): permission to appeal was granted to Aaron Robinson out of time; the appeal was allowed, the immediate-sale order was reversed and the matter was remitted for determination of occupation terms.