¹ Law Com. No. 181, para. 1.3.

² See, for example, Fuller v. Rooney (1961) 178 E.G. 65 (father and son-in-law); Lloyds Bank Ltd. v. Lake (1964) 190 E.G. 965 (sisters); All v. Hussein (1974) 321 E.G. 372 (relations by marriage); Smith v. Smith (1976) 120 Sol.Jo. 100 (sister and brother); Charlton v. Lester (1976) 238 E.G. 115 (mother, daughter and son-in-law), as well as the well-known case of Bull v. Bull [1955] 1 Q.B. 234 (son and mother).

³ Para. 1.3, referring to their Working Paper No. 94, para. 3.22.

⁴ [1955] 1 Q.B. 234, 237. It is frequently overlooked that the two other members of the Court, Hodgson and Parker L.JJ. agreed with him.

⁵ See. for example, Bedson v. Bedson [1965] 2 Q.B. 666, 678A; Barclay v. Barclay [1970] 2 All E.R. 676, 678h; Jones v. Jones [1977] 2 All E.R. 231, 235e.

⁶ See (1955) 19 Conv. (N.S.) 146; (1955) 18 M.L.R. 303, 408; (1956) 19 M.L.R. 312; [1955] C.L.J. 155. Oddly, the decision attracted no comment in the L.Q.R. at the time. There were also judicial attempts to explain the decision on other grounds; see Irani Finance Ltd v. Singh [1971] Ch. 59, 80D, per Cross L.J; Jones v. Challenger [1961] 1 Q.B. 176, 183, per Devlin L.J. (who, perplexingly, cited Bull v. Bull as an example of a joint tenancy created for a particular purpose).

⁷ Probably the reason for this is that since a joint tenancy is still capable of existing at law, joint tenants could be regarded as being entitled to occupy by virtue of their legal estate. But co-owners could be joint tenants in equity without being joint tenants at law.

⁸ Re Landi [1939] Ch. 828; Re Price [1928] Ch. 579, 589, per Clauson J., a case concerning a tenant of an undivided ninth share in customary tail special by descent in land formerly of copyhold tenure subject to the custom of gavelkind. What would today's generation of law students make of this complex property holding?

⁹ See Re Price, above; Re Kempthorne [1930] 1 Ch. 268; Re Newman [1930] 2 Ch. 409.

¹⁰ [1932] 1 Ch. 42, 47, applied by Denning L.J. in Bull v. Bull.

¹¹ [1988] A.C. 54, 78A, 81D. See also Williams & Giyn's Bank Lid v. Boland [1981] A.C. 487, 597C, 510G and 511 A, per Lords Templeman and Scarman.

¹² This reference to the purpose of the trust introduced a limitation usually of no consequence at common law, and was inconsistent with the unity of possession which existed between all co-owners. See further Section 11(a). The one area where the purpose of the trust was relevant to the question of occupation (as distinct from the issue of sale) arose in a testamentary context, where a testator left property to his executors or trustees upon trust for sale and to divide the proceeds between two or more beneficiaries. See, e.g., Williams v. Holland [1965] 2 All E.R. 157; Barclay v. Barclay [1970] 2 All E.R. 676 (in which Lord Denning expressly distinguished Bull v. Bull).

¹³ [1894] 1 Ch. 177. See, similarly, Re Wythes [1893] 2 Ch. 369 (equitable life tenant; no trust for sale); Re Stamford & Warrington (Earl) [1925] Ch, 162 (legal life tenant).

¹⁴ Crane, (1955) 19 Conv.(N.S.) 146, 147; (1955) 18 M.L.R. 408, 409; (1956) 19 M.L.R. 312; (1966) 82 L.Q.R. 29. 33. It was Professor Crane's criticism of Bull v. Bull that the Law Commission referred to in their Report, p. 7, n. 43.

¹⁵ Though not necessarily where the trust for sale was created by will.

¹⁶ This was the position in City of London Building Society v. Flegg [1988] A.C. 54. According to Lord Templeman (at p. 70D) A and B (the spouses) and C and D (the parents) were equitable tenants in common. Sed quaere. As between themselves A and B were beneficial joint tenants by virtue of the express declaration to that effect in the conveyance to them.

¹⁷ The issue was dealt with in a single sentence and a three-line footnote (n. 43). See n. 3 above.

¹⁸ The analysis first made by Blackstone, apparently; Bl.Comm. Vol. 2, pp. 180–182; Megarry & Wade, The Law of Real Property (5th ed.) p. 419, n. 17. Since there existed two exceptions to the necessity for unity of time, some judges spoke merely of three unities; see, e.g., Nielson-Jones v. Fedden [1975] Ch. 222, 228B, per Walton J. However, since 1926 legal co-owners can only hold as joint tenants; the unities of time and title are, therefore, no longer relevant in the case of legal joint tenancies. Thus, if A and B are legal joint tenants holding as trustees of land, and following A's death B appoints C as a new trustee, B and C will be joint tenants at law, despite the fact that there exists neither unity of time nor title between them. This point seems to be overlooked in the textbooks.

¹⁹ City of London Building Society v. Flegg [1988] A.C. 54, 77C, per Lord Oliver.

²⁰ Nullagine Investments Pty. Ltd. v. Western Australian Club Inc. (1993) 177 C.L.R. 635, 644, per Brennan J.

²¹ Megarry & Wade, op. cit., pp. 427–29. And see Bull v. Bull [1955] 1 Q.B. 234, 237, per Denning L.J.

²² For an interesting application of this principle, see Meyer v. Riddkk (1989) 60 P. & C.R. 50 (non-entitlement of 2 of 3 joint tenants to serve notice terminating tenancy under the Landlord & Tenant Act 1954, s. 41(2)).

²³ Murray v. Hall (1849) 7 C.B. 441; Jacobs v. Seward (1872) L.R. 5 H.L. 464, 478, per Lord Westbury. For the position where the activity of a tenant in common interfered with the possession of his co-tenants, but not so as to amount to an ouster, see The Proprietors of the Centre Building Units Plan No. 343 v. Bourne [1984] 1 Qd.R. 613.

²⁴ Bl.Comm., op. cit., p. 183.

²⁵ Oates v. Oates (1949) S.A.S.R. 37; Baxter v. Harrigan [1963] N.S.W.R. 432.

²⁶ M'Mahon v. Burchell (1846) 1 Coop.T.Cott. 457; Jones v. Jones [1977] 2 All E.R. 231, 235, per Lord Denning M.R; Dennis v. MacDonald [1981] 2 All E.R. 632, on appeal [1982] Fam. 63.

²⁷ Co.Litt. 172a; Wheeler v. Home (1740) Willes 208.

²⁸ 4 Anne, c. 16, s. 27.

²⁹ Cowper v. Fletcher (1865) 6 B. & S. 465, 473, per Shee J.; Co.Litt. 186a; James v. Portman (1593) Owen 102.

³⁰ Leigh v. Dickeson (1884) 15 Q.B.D. 60. This is an interesting case. The plaintiffs were trustees for A who was entitled to an undivided 3/4ths of a house in Dover as tenant in common with B. A leased her interest to T for 21 years. T later assigned the lease to the defendant, C, who entered into possession and paid rent. Subsequently C purchased the l/4th interest in the house from B. After the lease expired C remained in occupation and the trustees successfully claimed rent from him, whereas C's counterclaim for recovery of £80 spent on repairs and improvements was rejected.

³¹ (1981) 55 F.L.R. 426; Baxter v. Harrigan [1963] N.S.W.R. 432.

³² Moisley v. Mahoney (1950) V.L.R. 318. And see The Proprietors of the Centre Buildings Units Plan No. 343 v. Bourne [1984] 1 Qd.R. 613, 617–618, per Derrington J., as to whether the lessee is to be regarded as a tenant in common in respect of his interest. It should be remembered that in the Australian cases noted here and in notes 20, 25 and 31 above, there was no need to consider the possible impact on the co-owners’ rights of any trust for sale.

³³ Readers may detect that these facts are based upon Greenfield v. Greenfield (1979) 38 P. & C.R. 570, where the issue was principally one of severance. I have added the testamentary gift to the widow, a feature not present in the case itself.

³⁴ For examples, see Stott v. Ratcliffe (1982) 126 S.J. 310, and the recent case of Carr-Glynn v. Frearsons [1997] 4 C.L. 504 (C's aunt instructed defendants, F, to draft will leaving to C aunt's share of co-owned property. Aunt executed will, but died without severing the joint tenancy, so that C received nothing. C's claim against F for breach of duty to a beneficiary was dismissed).

³⁵ Sections 12 and 13 of the Act, whilst not adopting the wording of the corresponding clause (cl. 7) of the Commission's draft Bill, give substantial effect to it. Neither section attracted any parliamentary debate—a touching example of the legislature's confidence in the Law Commission.

³⁶ Law Com., op. cit., para. 13.2. But see Whitehouse & Hassall, The Trusts of Land and Appointment of Trustees Act 1997, A Practical Guide, para. 2.92 [307], n. 2.

³⁷ It has been suggested that where there is an express trust for sale, the interest of the beneficiary will usually be an interest in the proceeds and not in the land, so denying him any statutory right to occupy: Kenny, , Current Law Statutes, 1996, p. 47–15.Google Scholar This must surely be unsound. And see Law Com. Report, op. cit., para. 13.6, n. 152.

³⁸ By this phrase is meant the occupational rights of co-owners at common law and in equity before 1926. And, as has been argued, the nature of these rights remained unaffected by the Property legislation of 1925.

³⁹ This was the very situation that arose in Greenfield v. Greenfield, above, n. 33. The widow claimed to be entitled to occupy as the person entitled on intestacy to her husband's estate. She failed because there had been no severance of the equitable joint tenancy.

⁴⁰ See n. 12 above.

⁴¹ A change of purpose would need the consent of all beneficial co-owners. It would not be open to the trustees to seek to vary the purposes of the trust so as to deprive a beneficiary by succession of the right to occupy.

⁴² What if A had remained a bachelor? A change of purpose might be more difficult to establish.

⁴³ See Law Com. Report, para. 13.3.

⁴⁴ As in Re Hyde's Conveyance (1952) 102 L.J. 58.

⁴⁵ The combined effect of paras, (a) and (b) is to deny a statutory right to occupy where under a testamentary trust for sale a testator directs his executors to sell property and to divide the net proceeds between named beneficiaries. The Act thus confirms the decisions reached in Williams v. Holland, and Barclay v. Barclay; see n. 12 above.

⁴⁶ Whitehouse & Hassall, op. cit., para. 2.93 [308]. As to the effect of a letting by the trustees, see Section III(h), below.

⁴⁷ Including (a) the intentions of the trust's creators; (b) the purposes for which the land is held; (c) the circumstances and wishes of each beneficiary entitled to occupy under s. 12.

⁴⁸ Despite the words “any other’, the beneficiary must, it is assumed, be a beneficiary in occupation.

⁴⁹ See Law Com. Report, Appendix A, cl. 7, pp. 50–52. The Explanatory Notes make no attempt to explain the operation of the clause in detail.

⁵⁰ Law Com. Report, para. 13.6, adding in n. 152 that as regards beneficiaries under a trust of concurrent interests, the very nature of their interest would be changed into an interest in the land, not merely in the proceeds of sale.

⁵¹ See Section I, above.

⁵² The draftsman seems to have been disinclined to embark on a policy of positive abolition. See for instance, s. 3(1). Whilst the marginal note is (erroneously) worded “Abolition of doctrine of conversion”, this is effected in a negative manner, by enacting that land subject to a trust for sale is not to be regarded as personal property. Contrast the Law of Property (Miscellaneous Provisions) Act 1989, s. 3, which expressly provides for the abolition of the rule in Bain v. Fothergill.

⁵³ For example, where A, B and C provided the purchase money in equal shares, but the legal estate was conveyed to A and B alone.

⁵⁴ As in the scenario given in the text, where A holds as trustee for A and B's nephew, who inherits B's tenancy in common.

⁵⁵ A not dissimilar situation arose under the Matrimonial Proceedings and Property Act 1970, s. 38, which conferred statutory rights of occupation on a spouse, without interferring with that spouse's right of occupation which he or she enjoyed by virtue of having an equitable interest in the home. See now the Family Law Act 1996, s. 30(9), yet to be brought into force.

⁵⁶ Interpretation Act 1978. s. 6(c). See Re Myhill [1928] Ch. 100 (statutory references to “trustees” held applicable to a single trustee, applying the Interpretation Act 1889, s. l(l)(b)).

⁵⁷ The views of members of his family, not being beneficiaries with a statutory right to occupy, would not be a proper matter to have regard to under s. 13(4). Would it be reasonable to expect A to share the house with his nephew, if A disliked him? Cf. Kenny, op. cit., p. 47–18.

⁵⁸ Having regard to the matters listed in subs. (4)(a) to (c). See n. 47 above. The trustee is also precluded from exercising the powers in a manner likely to result in a person ceasing to occupy: subs. (7)(b).

⁵⁹ (1884) 15 Q.B.D. 60. For the facts, see n. 30 above.

⁶⁰ At p. 65. See also per Lindley L.J. at p. 69, who observed that tenancy in common was an inconvenient form of tenure, unfit for persons who could not agree; the evils attaching to it could be dealt with only in a suit for partition or sale, when the rights of the various owners could be properly adjusted.

⁶¹ For such A would be. See n. 48 above.

⁶² See the cases cited in n. 26 above.

⁶³ See Dennis v. McDonald [1981] 2 All E.R. 632 (man forcing mistress to leave co-owned home because of his violent conduct).

⁶⁴ If C happened to be living in the house at the time of M's death, the trustees could not under s. 13(7) exclude C, so discriminating against D, who could be excluded. Why should the circumstance of C's occupation create such a difference between the rights of the two equitable joint tenants?

⁶⁵ If C consents to D's exclusion, would this amount to an ouster, enabling D to recover compensation from C under the general law?

⁶⁶ E.g., where M herself contributed to the original purchase by A and B. If C refused to make the payments, D could not sue C for them; it is unlikely that the court would permit the trustees to enforce the condition against C, if they still declined to contribute themselves. Nor would the court order A and B to make any compensation payments.

⁶⁷ The trustees have power to impose reasonable conditions. Vis-à-vis D, the conditions imposed on C may well be reasonable. However, their decision not to subject themselves to the same conditions would constitute an unreasonable imposition of conditions, which is not the same thing. Perhaps C could in such event sue the trustees for a breach of trust.

⁶⁸ E.g., because there are reasonable grounds for believing that D's presence in the house would not be conducive to harmonious relations between C and D. The trustees cannot unreasonably exclude D's entitlement to occupy: s. 13(2)(a).

⁶⁹ Section 13(6)(a) refers to a condition requiring payments by way of compensation to the excluded beneficiary. This indicates that C has to make his payments direct to D, rather than to A and B for the benefit of C. This provision cannot be interpreted as imposing any statutory duty on C to pay D so as to enable D to sue C if he fails to pay. Nor yet does it appear that the trustees can sue C for non-payment. They can threaten to exercise their power to exclude C, should he maintain his refusal to pay D, but s. 13(7) precludes the exercise of this power unless C consents (which is probably unlikely) or the court gives its approval. The Act is singularly unhelpful in making any provision for the consequences of non-compliance with reasonable conditions imposed by trustees under s. 13(3).

⁷⁰ See s. 6(1) of the Act.

⁷¹ (1981) 55 F.L.R. 426. n. 31, above, and the discussion in the text.

⁷² Assuming that T ranks as a beneficiary within s. 12(1). he cannot be excluded under s. 13(7) unless the court approves. If he is not held to be a s. 12 beneficiary, then A and B possess no statutory powers to exclude him.

⁷³ It is uncertain whether the grant of a lease by a joint tenant effects a severance; see Megarry & Wade. op. cit., p. 431. Modern Australian cases have held there is no severance: Frieze v. linger (1960) V.R. 230; Baxter v. Harrigan [1963] N.S.W.R. 432; Oates v. Oates (1949) S.A.S.R. 37, relying on Cheshire, , Modern Law of Real Property (5th ed.) (1944), p. 555Google Scholar (an opinion omitted from the 10th (1967) and later editions). Even if there is an automatic severance, B could still inherit A's interest by will. There are also certain ancient decisions to the effect that the lessee's rights were unaffected by the lessor's death: Megarry & Wade, he. eit., n. 38. It is extremely doubtful whether these have any relevance to the changed legal situation considered in the text.

⁷⁴ Annual Report for 1983–84, Law Com. No. 140, para. 2.41. Their Working Paper was published in October 1985.

⁷⁵ Whitehouse & Hassall, op. eit., para. 2.97 [314].

⁷⁶ See n. 11 above.

⁷⁷ Report No. 181, para. 1.7.

⁷⁸ See Sch. 2, paras. 3 and 4, which make the appropriate amendments to ss. 34 and 36 of the Law of Property Act 1925, dealing with tenancies in common and joint tenancies respectively.