Notes and Questions 16.4

594 Property Law

occupation? Of whose views must the trustees take account when exercising their powers under section 13, and what is the position of beneficiaries already in occupation? What power does the court have to resolve issues relating to the trustees’ exercise of their power?

7 What are the implications of the following analysis:

What the Act seeks to do is to impose a regime that is quite hostile to the very nature of co-ownership as it has existed for centuries. If two people A and B are co-owners they enjoy unity of possession. This is the hallmark of their relationship inter se. The fact that they happen to be beneficiaries under a trust of land and that the legal estate is vested in others on trust for them is quite immaterial. Parliament has not abolished unity of possession. Indeed, the Act expressly preserves both forms of beneficial co-ownership [see paragraphs 3 and 4 of Schedule 2 to the 1996 Act]. Unity of possession, therefore, survives, and with it the incidents attaching to it at common law. Parliament readily accepted the [Law] Commission’s proposals for the right to occupy [and] sections 12 and 13 passed through the entire legislative process without any comment or discussion. Perhaps these sections will operate successfully for succession trusts of land. What they certainly fail to do is to provide satisfactorily for the occupational rights of co-owners. The statutory rights seriously erode the general law rights to occupy. The Commission’s claim to place concurrent interest owners in a comparatively better position is ill-founded. Fortunately, though no doubt unwittingly, the general law rights of co-owners relating to occupation have been preserved. They can be resorted to and enforced in any situation in which it is advantageous to do so. In this vital area of occupation, it is submitted that the [1996] Act may well turn out to be a dead letter. (Barnsley, ‘Co-owners’ Rights to Occupy Trust Property’, pp. 144–5)

8Under section 30 of the Family Law Act 1996, a spouse with no property rights might still assert a right of occupation in the family home. If a party has a right to occupy (either under section 12 of the Trusts of Land and Appointment of Trustees Act 1996 or under section 30 of the Family Law Act 1996), what power does the court have to vary those occupation rights? What is the position of cohabitants with no property interest in the family home?

16.2.3.2.Chattels

For obvious reasons (but do you know what these are?), co-ownership of chattels is not subject to the same regime as co-ownership of land. Unity of possession dictates that each co-owner has the right to possess the property and, as against the rest of the world, may exercise full rights of ownership whether or not he is acting with the consent of his fellow co-owners.

In cases of dispute between co-owners, section 188 of the Law of Property Act 1925 provides that a co-tenant with at least a half-share (by value) of the