Creditors and section 15 of the Trusts of Land and Appointment of Trustees Act 1996 : first among equals?
Probert, Rebecca. (2002) Creditors and section 15 of the Trusts of Land and Appointment of Trustees Act 1996 : first among equals? The Conveyancer and Property Lawyer . pp. 61-67. ISSN 0010-8200Full text not available from this repository.
Official URL: http://webcat.warwick.ac.uk/record=b1747429~S7
There has been considerable debate about the extent to which section 15 of the Trusts of Land and Appointment of Trustees Act 1996 has changed the way in which the courts should decide applications for the sale of the family home,1 in particular whether it has altered the pre-1996 practice that the interests of a creditor would prevail unless the circumstances were “exceptional”.2 The Law Commission had stated that the aim of the guidelines was to “consolidate and rationalise”3 the way in which cases had been dealt with under section 30 of the Law of Property Act 1925. The first case decided under the new legislation took the same line, accepting that section 15 had merely codified the existing law.4 However, in the case of The Mortgage Corporation v. Shaire, 5 decided in February 2000, it was held that the section had had a more radical effect and fundamentally changed the approach of the courts in deciding whether the interests of a beneficiary or creditor should prevail. Pascoe commented that “only time will tell if judges are prepared to implement the *Conv. 62 consequences of [this] judgment and let a fresh wind blow away the remnants of the harshness for families of section 30 of the Law of Property Act 1925 when faced with applications by secured creditors.”6 The decision of the Court of Appeal in Bank of Ireland Home Mortgages v. Bell 7 would seem to indicate that the courts are not willing to take that step.
|Item Type:||Journal Article|
|Subjects:||K Law > KD England and Wales|
|Divisions:||Faculty of Social Sciences > Law|
|Library of Congress Subject Headings (LCSH):||Debtor and creditor -- England, Debtor and creditor -- Wales, Housing -- Finance -- Law and legislation -- England, Housing -- Finance -- Law and legislation -- Wales, Trusts and trustees -- England, Trusts and trustees -- Wales|
|Journal or Publication Title:||The Conveyancer and Property Lawyer|
|Publisher:||Sweet & Maxwell Ltd.|
|Page Range:||pp. 61-67|
|Access rights to Published version:||Restricted or Subscription Access|
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