Trust of Land on Death UK: TOLATA 1996, Co-Ownership and Sale Disputes
Updated 31 May 2026 · 9 min read · Property & Co-Ownership
When two people own a property together and one dies, the legal outcome depends entirely on whether they were beneficial joint tenants (right of survivorship applies) or tenants in common (the deceased’s share passes under their will or intestacy). In the second scenario, the surviving co-owner and the deceased’s estate may want different things — and the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) is the framework for resolving those conflicts.
The Two Types of Co-Ownership
| Aspect | Beneficial joint tenancy | Tenancy in common |
|---|---|---|
| Right of survivorship? | Yes — survivor takes all | No — share passes by will/intestacy |
| Can share be left by will? | No | Yes |
| Shares equal? | Always equal | Can be unequal |
| Severance possible? | Yes — converts to tenancy in common | N/A — already TiC |
| What happens on death? | Survivor’s title updated at Land Registry; no probate for the property | Deceased’s share enters estate; trust of land continues between survivor and estate |
The TOLATA 1996 Framework
The Trusts of Land and Appointment of Trustees Act 1996 governs all trusts of land in England and Wales — including the implied trust that arises from co-ownership. Key provisions:
- Section 11 — trustees must consult adult beneficiaries with an interest in possession and give effect to their wishes so far as consistent with the general interest of the trust.
- Section 12 — a beneficiary entitled under the trust has a right to occupy the land where the purposes of the trust include making it available for occupation.
- Section 13 — trustees can restrict or exclude a beneficiary’s right to occupy, but must act reasonably and may need to compensate an excluded beneficiary.
- Section 14 — any person with an interest in the trust can apply to the court for an order: declaring the extent of a person’s interest; ordering or prohibiting a sale; or varying the trustees’ powers.
- Section 15 — the court’s discretion in s.14 applications must consider: the purpose of the trust; the welfare of minors in occupation; and the interests of creditors.
After Death: The Conflict Between Survivor and Estate
When a tenant in common dies, the surviving co-owner retains their share in the property. The deceased’s share passes under the will or intestacy — typically to children, relatives, or beneficiaries who may have no connection to the property. This creates a two-beneficiary trust of land:
- The surviving co-owner: wants to stay; may have lived there for decades; may have children in school catchment.
- The beneficiaries of the estate: want their inheritance; may have no sentimental attachment; may need the money.
Neither side automatically “wins.” The court, on a section 14 application, weighs the competing interests using the section 15 factors. Common outcomes: a sale is ordered but delayed to allow the surviving co-owner to find alternative housing; the surviving co-owner buys out the estate’s share at market value; or the property is sold and proceeds divided.
Severing the Joint Tenancy: Planning Before Death
The most common reason couples choose to hold as tenants in common (or sever an existing joint tenancy) is to enable each to leave their share to their children — particularly in a second marriage or blended family scenario. If a couple owns the family home as joint tenants and one dies, the survivor takes the whole property by survivorship — and their will (which may leave the property to their own children on second death) entirely determines what happens next.
Severing the joint tenancy before death ensures that each co-owner’s share can be left to their chosen beneficiaries. The simplest method is a written notice of severance served on the co-owner. Once severed, each co-owner can leave their share — often into a life interest trust in the will — ensuring the survivor can remain in occupation but the underlying capital passes to the intended children on second death.
TOLATA and Creditors: The Bankruptcy Risk
If one co-owner becomes bankrupt, their trustee in bankruptcy inherits the right to apply under section 14 TOLATA for a sale. Section 335A Insolvency Act 1986 means that after one year from bankruptcy, the court must usually order a sale unless there are exceptional circumstances. “Exceptional” is interpreted narrowly — serious disability of the surviving co-owner is exceptional; ordinary financial hardship is not. This risk is the main reason why unmarried couples who own property together should consider a cohabitation agreement setting out what happens to the property if either partner has financial difficulties.
FAQs
What is a trust of land and how does it arise on co-ownership?
When two or more people own land in England and Wales together, a trust of land arises automatically under section 1 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). The legal title is held by the co-owners as trustees; the beneficial (equitable) interest is held in the shares agreed between them. For co-owners who are joint tenants in equity, each has an equal beneficial share and there is a right of survivorship (the survivor takes the whole on the other's death). For co-owners who are tenants in common in equity, each has a distinct beneficial share (which may be equal or unequal) that passes under their will or intestacy on death — there is no right of survivorship. All co-owned land in England and Wales is therefore held on a trust of land, whether the co-owners realise it or not.
What happens to a trust of land when one co-owner dies?
The outcome depends on whether the co-owners held the land as beneficial joint tenants or as tenants in common: (1) Beneficial joint tenants — the right of survivorship (jus accrescendi) operates automatically. The surviving co-owner becomes the sole owner of the entire beneficial interest without any probate process. The deceased's share does not pass under their will or intestacy — it ceases to exist as a separate share. To complete the legal title, the surviving co-owner applies to HM Land Registry to remove the deceased co-owner from the title (by lodging the death certificate and Form DJP or AP1). (2) Tenants in common — the right of survivorship does not apply. The deceased's share (which may be 50%, or an agreed proportion) passes under their will or intestacy. The surviving co-owner continues to own their share; the deceased's share is now owned by whoever inherits it under the will or intestacy rules. The property is still held on a trust of land — now with two sets of interests potentially in conflict.
Can a surviving co-owner be forced to sell the property after the other co-owner dies?
Yes, potentially. Under section 14 of TOLATA 1996, any person who has an interest in a trust of land — including a beneficiary under the deceased's estate who is entitled to the deceased's share — can apply to the court for an order for sale. The court must have regard to the factors listed in section 15 TOLATA: (1) the intentions of the person who created the trust; (2) the purposes for which the property is held (for example, as the family home); (3) the welfare of any minor occupying or likely to occupy the property as their home; (4) the interests of any secured creditors of a beneficiary. The court will not automatically order a sale — it exercises discretion. Where the property is the surviving co-owner's home and the estate's share is relatively small, courts often postpone or refuse a sale. But where the estate's interest is substantial and the surviving co-owner has alternative housing, a sale order may be granted.
What rights does a beneficiary have to occupy a trust of land property?
Section 12 of TOLATA 1996 gives a beneficiary who is beneficially entitled under a trust of land a right to occupy the property if: (1) the purposes of the trust include making the land available for occupation; or (2) the land is held by the trustees so as to be so available. This right of occupation can be restricted or excluded by the trustees under section 13 — but only on reasonable grounds. The trustees can impose conditions on the occupying beneficiary, including requiring them to pay compensation to other beneficiaries who are not in occupation (section 13(6)). In a co-ownership situation after death, the surviving co-owner (who may also be a trustee) and the personal representative of the deceased's estate are effectively two sets of interests — potentially both acting as trustee and beneficiary simultaneously. Courts in cases like Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53 have clarified how beneficial shares are determined in contested co-ownership cases.
How does severance of a joint tenancy affect the position on death?
Severance of a joint tenancy converts the equitable joint tenancy into a tenancy in common — splitting the beneficial interest into separate, transmissible shares. Crucially, severance must occur before death to be effective: a person cannot sever the joint tenancy in their will (since the right of survivorship operates automatically at the moment of death, before the will takes effect). Methods of severance: (1) written notice to the other co-owner (the most common method under s.196 Law of Property Act 1925 — must be in writing, left at or sent to the co-owner's last known address); (2) mutual agreement; (3) course of dealing inconsistent with joint tenancy (difficult to prove — Burgess v Rawnsley [1975]); (4) alienation of the share (selling or mortgaging it). Once severed, each tenant in common holds their share under their will or intestacy on death, and the surviving co-owner does not take by survivorship. Couples in second marriages often sever the joint tenancy deliberately so that each can leave their share to children from the first relationship.
Can a creditor or trustee in bankruptcy force the sale of a co-owned property?
Yes — this is a critical risk for a co-owner whose partner or co-owner has debts. Where a co-owner becomes bankrupt, their beneficial share in the co-owned property vests in their trustee in bankruptcy. The trustee then has the right to apply under section 14 TOLATA 1996 for an order for sale. The court must consider the same section 15 factors, but for a trustee in bankruptcy there is an additional framework: section 335A Insolvency Act 1986 provides that where the application is made more than one year after the bankruptcy, the court shall make the order for sale 'unless the circumstances of the case are exceptional.' 'Exceptional' has been interpreted narrowly — serious illness or disability of the occupying partner has been held sufficient; mere hardship of having to move has not. If both co-owners are solvent, a sole creditor of one cannot force a sale without going through TOLATA proceedings — they can only obtain a charging order over the debtor's beneficial interest, not directly compel a sale.
Protect Your Home in Your Will
Decisions about how you own your home — joint tenants or tenants in common — determine who inherits your share. A will that creates a life interest trust can protect the surviving partner’s right to remain in the property while ensuring the capital ultimately passes to your intended beneficiaries. WillSafe’s DIY will kit guides you through these decisions.
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