White v White

Under Trusts of Land and Appointment of Trustees Act 1996, the court has a discretion over sale of trust land. It must consider the specified matters in section 15, but those matters are not exhaustive and have no prescribed order of weight.

The intentions in section 15(1)(a) are the common intentions of all persons creating the trust at its creation. A later purpose under section 15(1)(b) may arise informally, but must be a purpose subject to which the property is held and ordinarily requires both owners’ agreement. The court may also weigh adult beneficiaries’ wishes and circumstances, despite disagreement between equal co-owners.

The parties were beneficial joint tenants of their family home. After their relationship ended, the father became the children’s primary carer under a residence order. The mother’s application under Trusts of Land and Appointment of Trustees Act 1996 changed from one seeking deferred sale to one seeking immediate sale. The father sought a deferred sale and had also made a capital-provision application under Schedule 1 to the Children Act 1989.

His Honour Judge McIntyre in Uxbridge County Court ordered sale. The father appealed, alleging errors in the construction and application of section 15 of the 1996 Act and in the exercise of discretion, particularly concerning the children’s housing.

1. Appeal dismissed unanimously. Lord Justice Thorpe held that, although the extempore county court judgment had deficiencies, the judge understood the essential task and had reached a discretionary balance between the mother’s need to realise her capital and the children’s interest in remaining in their established home. The prospect of a retrial did not justify setting aside that conclusion.
2. Lady Justice Arden held that the judge had not applied the former rule under section 30 of the Law of Property Act 1925, which had proceeded from a duty to sell subject to postponement. He had applied the Trusts of Land and Appointment of Trustees Act 1996, under which trustees have the powers of an absolute owner and there is no duty to sell.
3. For section 15(1)(a), the relevant intention was the common intention of all persons who created the trust. The statutory language referred naturally to intentions before the trust’s creation, not to subsequent intentions. For section 15(1)(b), a purpose could be agreed informally, but an alleged later purpose of housing the children could change the original purpose only with both parties’ agreement. There was no evidence of the mother’s agreement.
4. Section 14(2) confers a discretion. Section 15(1) requires regard to stated factors but neither makes them exhaustive nor assigns them a fixed weight. The judge could therefore consider and give appropriate weight to the mother’s wishes and circumstances under section 15(3), notwithstanding the parties’ equal and conflicting interests.
5. Lord Justice Thorpe and Lady Justice Arden added case-management observations. Where co-owners with children invoke both statutory regimes, applications under Schedule 1 to the Children Act 1989 and the 1996 Act should ordinarily be considered together by the same court. The outstanding Schedule 1 application should not be materially prejudiced by the earlier determination of the sale application.

• Court of Appeal (Civil Division): appeal dismissed: [2003] EWCA Civ 924.
• Uxbridge County Court (His Honour Judge McIntyre): ordered the sale of the jointly owned home on 11 June 2002 under the Trusts of Land and Appointment of Trustees Act 1996.