Sections 4 and 5 of the Trusts of Land and Appointment of Trustees Act 1996 [‘TOLATA’] introduced ‘trusts of land ‘ in place of ‘trusts for sale.’

The old concept of a ‘trust for sale’ found in The Law of Property Act 1925 was repealed.

However, the term ‘Trust for sale’ continues to appear in wills executed after 1 January 1997.

In early 2020 I was even told by a judge that executors were under a duty i.e. ‘compulsion’, to sell estate land.

That is completely wrong!

See my article, ‘Electing between equitable remedies’ – published in ‘Trusts & Trustees’ (Oxford University Press) [full citation appears on the Publications page at www.carlislam.co.uk]. This is a leading, rigorous and peer reviewed Law Journal.

Brief extract:

‘[T]he author further submits that the following general principles of equity, trust law, and
conveyancing practice, are relevant to the consideration of duties and powers:

i. an executor is not under a duty (i.e. any legal compulsion) to sell land, because s.2 of the
Trusts Of Land And Appointment of Trustees Act 1996 [abolished the doctrine of conversion];

ii. executors are statutory trustees of land, s.1(i)(a) Trusts Of Land And Appointment of Trustees Act 1996; …

[iii] …

iv. the duties of executors, trustees, and trustees of land are the same in relation to land, see Byrnes v Kendle [2011] HCA 26, (2011) 243 CLR 253, at paragraphs 67 and 119, which was cited in Brudenell-Bruce v. Moore [2014] EWHC 3679 (Ch), by Mr Justice Newey at 88;

v. trustees must manage trust property for the benefit of the beneficiaries, i.e. ‘they should
let or relet trust realty . . . where that is the appropriate mode of making the property beneficial to the trust’ [Lewin on Trusts], because ‘they are also under a duty to seek a renewal of the lease if a renewal would be beneficial to the trust’ [Lewin], i.e. where
property is retained because it would be imprudent to sell it because, ‘The overriding obligation of trustees is ordinarily to preserve and safeguard the trust property’ [Lewin];

vi. Trustees may therefore be obliged to generate income from land comprised in the trust;

vii. ‘Trustees are bound to sell at the best price reasonably obtainable. . .’ [Snell’s’ Equity];

viii. trustees must act prudently, because ‘. . . if they contract under circumstances of haste and improvidence, they may be personally liable for the loss’ [Lewin]. They must be careful not to sell under unnecessarily depreciatory conditions’ [Snell];

ix. in relation to the exercise of their powers of investment, executors are trustees for the purposes of the Trustee Act 2000 (i.e. because s.28 of the Trustee Act 2000 …’

So, any technical ignorance amongst legal practitioners and judges about the introduction of ‘trusts of land’ in place of ‘trusts for sale’ is inexcusable, and at Trial, logically may lead to an appeal.