TOLATA

Question 1

What section of the Law of Property Act is relevant under pre-tolata law?

Answer 1

Section 30
houses were assets under the trust for sale mechanism

Question 2

Which case (with judgement) created the doctrine of conversion?

Answer 2

Re Buchanan
Lord Greene - judicial discretion created the doctrine of conversion because the courts liked to sell houses to release the value to the creditors. This didn’t take emotions into account (Holliday case)

Question 3

Which case can be twinned with Re Buchanan?

Answer 3

Re Citro
Per Nouse LJ, no weight should be given to the interests of the wife and children

Question 4

What was the exception to the pre-tolata law?

Answer 4

Stevens v Hutchinson
Per Lord Upjohn - no sale was ordered due to the particularly bad conduct of the husband. “Ne’er do well waster”

Question 5

What academic criticised the pre-tolata position?

Answer 5

Lorna Fox
The previous law was insensitive, and the judicial discretion often just forced a sale for the benefit of the creditor.
She argued that houses hold identity, belonging, comfortableness, location and history.

Question 6

What are the relevant sections of TOLATA to remember?

Answer 6

Section 4 - lets the trustee postpone sale
Section 14 and 15 govern disputes
Section 16 still allows for overreaching

Question 7

What case shows the impact of s14 and 15 of TOLATA?

Answer 7

Shaire - the courts used a condition to allow the spouses to come to an agreement and stay in the home.
Lord Neuberger argued that s15 of TOLATA gave more judicial discretion than the LPA

Question 8

How are beneficiaries protected under TOLATA?

Answer 8

1. Consultation (undermined by overreaching)
   - s6(5) and s11
2. Consent
   - s8(2) and s10(1)

Question 9

Which case demonstrates how overreaching still persists in post-TOLATA law?

Answer 9

Chang v Lueng - she had a 51% beneficial interest in the home

Question 10

Which case demonstrates how beneficiaries are better protected in post-TOLATA law?

Answer 10

Edwards v Lloyds - the welfare of children were considered. This protects their relationship to the property.

Question 11

Which cases undermine Edwards v Lloyds?

Answer 11

Edwards v RBS - this protection is not extended to grandchildren
Achampong - when children move out, the idea of the cohesive family home (Fox) is lessened.

Question 12

Which academic comments on how TOLATA has impacted children?

Answer 12

Susan Bright - judicial discretion from TOLATA has meant that better decisions are able to be made which consider children’s welfare more

Question 13

Where is Hopkins academic commentary relevant and what does he say?

Answer 13

When answering essay questions on the success of TOLATA.
He says that the negatives from it e.g. the complex dual system, are necessary because of its long term benefits. These benefits include the consideration of beneficiaries and putting weight on the intention of the trust creator and co-owner.

Question 14

Where is Martyn’s academic commentary relevant and what does it say?

Answer 14

In essay questions about the effectiveness of TOLATA, as well as considering potential reforms.
Martyn is critical of the lack of clarity in TOLATA and argues that there is therefore mixed success.

Question 15

Where is Clements academic commentary relevant and what does it say?

Answer 15

Essays in the effectiveness of TOLATA.
It is a major improvement in theory but reform is required to make it strong in practice.
- trustee discretions allow for inconsistencies
- judicial discretion makes cases unpredictable
- the dual system during transitions create short term limits on its simplification aims