CO-OWNERSHIP AND THE TRUSTS OF LAND AND APPOINTMENT OF TRUSTEES ACT 1996
1) Legal joint tenancy
A.G. Securities v. Vaughan [1990] 1 A.C. 417, HL Materials B15
2) Presumption of equitable joint tenancy
Goodman v Gallant [1986] 2 WLR 236, CA Materials
3) Severance of equitable joint tenancy
Section 36(2) of the Law of Property Act 1925 Statute Materials
Burgess v Rawnsley [1975] 1 Ch 429, CA Materials
Re 88 Berkeley Road [1971] 1 All ER 254 Materials
4) Effect of severance on purchaser
Law of Property (Joint Tenants) Act 1964 Materials
TRUSTS OF LAND
Imposed upon all co-owners:
Tenants in common (LPA 1925 s.34(2))
Joint tenants (LPA 1925 s.36(1))
Nature of trust
Previously ‘trust for sale’
Now ‘trust of land’: TOLATA s.1
LPA 1925 s.34(2):
(2) Where, after the commencement of this Act, land is expressed to be conveyed to any persons in undivided shares and those persons are of full age, the conveyance shall (notwithstanding anything to the contrary in this Act) operate as if the land had been expressed to be conveyed to the grantees, or, if there are more than four grantees, to the four first named in the conveyance, as joint tenants upon…statutory trusts
LPA 1925 s.36(1):
- Where a legal estate (not being settled land) is beneficially limited to or held in trust for any persons as joint tenants, the same shall be held on trust…in like manner as if the persons beneficially entitled were tenants in common
TRUSTS OF LAND (& APPOINTMENT OF TRUSTEES) ACT 1996
1) Trustees’ powers
- the full extent
“for the purpose of exercising their functions as trustees, the trustees of land have in relation to the land subject to the trust all the powers of an absolute owner”
TOLATA s.6(1))
including “power to acquire land under the power conferred by section 8 of the Trustee Act 2000”. TOLATA s.6(3)
- subject to:
- i) delegation
“(1) The trustees of land may, by power of attorney, delegate to any beneficiary or beneficiaries of full age and beneficially entitled to an interest in possession in land subject to the trust any of their functions as trustees which relate to the land
(5) A delegation under subsection (1) may be for any period or indefinite.”
TOLATA 1996 s.9
Revocation of delegation:
All trustees must agree to delegation, only one need agree to revocation.
Death of trustee does not revoke, appointment of new trustee does.
TOLATA 1996 s.9(3)
Presumption in favour of purchaser acquiring from unauthorised delegate, if person dealing with unauthorised delegate makes statutory declaration that he did not know of the lack of authority.
TOLATA 1996 s.9(3)
Trustees have on-going duty to supervise the delegate and may be liable for improper failure to revoke delegation
TOLATA 1996 s.9A
(inserted by Trustee Act 2000 schedule 2 Part II para. 45
express removal of powers by trust instrument
TOLATA s.8(1)
Escaping s.8(1) clauses?
· Section 14 TOLATA 1996?
The court may make any order: “relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain the consent of, or to consult, any person in connection with the exercise of their functions)” (emphasis added)
· The Rule in Saunders v Vautier?
- The inherent ‘emergency’ jurisdiction of the court?
Re New [1901] 2 Ch 534
Trustee Act 1925 s.57
- Effect on purchaser of s.8 limitation
Registered land
A transaction in breach of a ‘restriction’ is void and will not be registered.
Unregistered land
“(a) the trustees shall take all reasonable steps to bring the limitation to the notice of any purchaser of the land from them, but
(b) the limitation does not invalidate any conveyance by the trustees to a purchaser who has no actual notice of the limitation”.
TOLATA 1996 s. 16(3)
QU: protection for imprudent purchasers?
- consent
The trust instrument may require the consent of a third party or third parties before the powers can be exercised.
TOLATA s.8(2)
Effect on purchaser of sale without consent
“If a disposition creating a trust of land requires the consent of more than two persons to the exercise by the trustees of any function relating to the land, the consent of any two of them to the exercise of the function is sufficient in favour of a purchaser”
TOLATA s.10(1)
consultation with adult beneficiaries
“(a) so far as practicable, consult the beneficiaries of full age and beneficially entitled to an interest in possession in the land, and (b) so far as consistent with the general interest of the trust, give effect to the wishes of those beneficiaries, or (in case of dispute) of the majority (according to the value of their combined interests)”
TOLATA 1996 s.11(1)
a purchaser of unregistered land “need not be concerned to see that any requirement imposed on the trustees by section…11(1) has been complied with”
TOLATA 1996 s.16(1)
careful exercise
“The duty of care under section 1 of the Trustee Act 2000 applies to trustees of land when exercising [their powers]”. TOLATA s.6(9)
TRUSTEE ACT 2000
S.1 The Duty of Care
(1) Whenever the duty under this subsection applies to a trustee, he must exercise such care and skill as is reasonable in the circumstances, having regard in particular—
(a) to any special knowledge or experience that he has or holds himself out as having, and
(b) if he acts as trustee in the course of a business or profession, to any special knowledge or experience that it is reasonable to expect of a person acting in the course of that kind of business or profession.
Managing Disputes
1) Beneficial entitlement to occupation:
“A beneficiary who is beneficially entitled to an interest in possession in land subject to a trust of land is entitled by reason of his interest to occupy the land” TOLATA s.12(1)
Subject to TOLATA s.13, next.
2) Trustees’ power to exclude and restrict occupation rights
Reasonableness requirement
TOLATA 1996 s.13(2), (4)
No eviction without court order
TOLATA 1996 s.13(7)
Imposition of conditions
TOLATA 1996 s.13(3), (5), (6)
3) Application to court to resolve dispute
The court may make any order it thinks fit:
“in relation to the exercise by the trustees of any of their functions” TOLATA 1996 s.14(2)(a)
or “declaring the nature or extent of a person’s interest in property
subject to the trust” TOLATA 1996 s.14(2)(b)
When making an order the court must have regard to the matters listed in section 15.
4) Factors considered by the court
“(1) The matters to which the court is to have regard in determining an application for an order under section 14 include—
(a) the intentions of the person or persons (if any) who created the trust,
(b) the purposes for which the property subject to the trust is held,
(c) the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and
(d) the interests of any secured creditor of any beneficiary.”
TOLATA 1996 S.15
Possible Orders Under Section 14 TOLATA 1996
1) Refuse a sale
Re Buchanan-Wollaston [1939] 2 All ER 302
TOLATA 1996 s. 15(1)(b)
Re Evers [1980] 3 All ER 399
2) Refuse a sale but make an order regulating occupation rights
Dennis v McDonald [1981] 2 All ER 632; [1982] 1 All ER 590
3) Order a sale
Jones v Challenger [1960] 1 All ER 785
4) Order a sale but suspend the order for a short period
5) Partition
Rodway v Landy [2001] 2 WLR 1775; [2001] Ch. 703 (see para. 27)
TOLATA 1996 s.7
LAWSON, F. H. AND RUDDEN, B., THE LAW OF PROPERTY, 2ND EDN,
OXFORD: CLARENDON PRESS, 1982, P. 82
CO-OWNERSHIP…
English law has always known two kinds of co-ownership, in accordance with which several persons enjoy what are called concurrent interests. They are called respectively joint ownership and ownership in common. In speaking of land the terms joint tenancy and tenancy in common are used, but this is used of freehold owners and has nothing to do with the law of leases. The difference between them is that whereas if one owner or tenant in common dies, his share passes to his successors, whether by will or on an intestacy, one joint tenant’s share accrues on his death to the other joint tenants, so that when all the joint tenants but one are dead the last survivor becomes sole owner tenant.
Lawyers have tried to explain this right of survivorship in a thoroughly artificial way by saying that whereas tenants in common are regarded as holding undivided shares in the land, each share being capable of being alienated, joint tenants do not own shares, but each joint tenant owns the whole, subject to the concurrent ownership of the other joint tenants. When one dies the others do not in theory acquire anything that they had not already, but are merely relieved of the presence of a competing tenant.
The phrase ‘undivided shares’ has a long history and is much used in modern statutes, so it is a burden we must accept. But it would be meaningless to call a share ‘undivided’ if by that were meant not separate from the other shares. The simplest way to grasp the position of tenants in common is to think of shares in a company. The shareholders each have a separate thing which they can alienate or leave to pass on their death. It is the property in which the share subsists—the company—which is undivided. So two tenants in common of a house each have a separate, though intangible, asset; it is the house which is not divided into distinct ‘shares’. . . .
GOODMAN v GALLANT [1986] 2 WLR 236, Court of Appeal
FACTS: A married couple purchased a house in their joint names and held it as beneficial joint tenants in equity. The husband left his wife (the plaintiff) and the defendant moved in with her. They purchased the husband’s interest from him, the conveyance providing that the plaintiff and defendant were to hold the property on trust for sale as joint tenants in equity. The defendant left and the plaintiff served a notice severing the tenancy. She then issued a summons for a declaration as to their respective shares in the property. She claimed to be entitled to a three-quarters share. The registrar held that the express declaration of the joint tenancy in equity had established their respective beneficial shares, upon severance, as half and half. The judge at first instance upheld the registrar’s conclusion and the plaintiff appealed to the Court of Appeal.
HELD: The appeal was dismissed.
SLADE LJ: . . .
In a case where the legal estate in property is conveyed to two or more persons as joint tenants, but neither the conveyance nor any other written document contains any express declaration of trust concerning the beneficial interests in the property (as would be required for an express declaration of this nature by virtue of s. 53(1)(b) of the Law of Property Act 1925), the way is open for persons claiming a beneficial interest in it or its proceeds of sale to rely on the doctrine of ‘resulting, implied or constructive trusts’: see s. 53(2) of the Law of Property Act 1925. In particular, in a case such as that, a person who claims to have contributed to the purchase price of property which stands in the name of himself and another can rely on the well known presumption of equity that a person who has contributed a share of the purchase price of property is entitled to a corresponding proportionate beneficial interest in the property by way of implied or resulting trust: see, for example, Pettitt v Pettitt [1970] AC 777, 813–814, per Lord Upjohn. If, however, the relevant conveyance contains an express declaration of trust which comprehensively declares the beneficial interests in the property or its proceed of sale, there is no room for the application of the doctrine of resulting implied or constructive trusts unless and until the conveyance is set aside or rectified; until that event the declaration contained in the document speaks for itself.
. . . in the absence of any claim for rectification or rescission, the provision in the conveyance declaring that the plaintiff and the defendant were to hold the proceeds of sale of the property ‘upon trust for themselves as joint tenants’ concludes the question of the respective beneficial interests of the two parties in so far as that declaration of trust, on its true construction, exhaustively declares the beneficial interests.
BURGESS v RAWNSLEY [1975] 1 Ch 429, Court of Appeal
FACTS: Mr Honick (a widower) and Mrs Rawnsley (a widow) met at a scripture rally in Trafalgar Square. They became close friends and bought as joint tenants the fee simple to the house of which Mr Honick had hitherto been a tenant. However, they later fell out. It was orally agreed that Honick should buy out Mrs Rawnsley’s interest for £750. Before matters could finally be resolved, Honick died. The issue before the court was whether there had or had not been a severance.
HELD: The oral agreement (though not an enforceable contract) had been sufficient to sever the joint tenancy.
LORD DENNING MR: . . . Nowadays everyone starts with the judgment of Sir William Page Wood V-C in Williams v Hensman (1861) 1 Johns & Hem 546, 557, where he said:
A joint tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. . . . Secondly, a joint tenancy may be severed by mutual agreement. And, in the third place, there may a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been effected, as happened in the cases of Wilson v Bell (1843) 5 Ir Eq R 501 and Jackson v Jackson (1804) 9 Ves Jun 591.
In that passage Page Wood V-C distinguished between severance ‘by mutual agreement’ and severance by a ‘course of dealing.’ That shows that a ‘course of dealing’ need not amount to an agreement, expressed or implied, for severance. It is sufficient if there is a course of dealing in which one party makes clear to the other that he desires that their shares should no longer he held jointly but be held in common. I emphasise that it must be made clear to the other party. That is implicit in the sentence in which Page Wood V-C says:
it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested.
Similarly it is sufficient if both parties enter on a course of dealing which evinces an intention by both of them that their shares shall henceforth be held in common and not jointly. As appears from the two cases to which Page Wood V-C referred of Wilson v Bell 5 Ir Eq R 501 and Jackson v Jackson 9 Ves Jun 591.
I come now to the question of notice. Suppose that one party gives a notice in writing to the other saying that he desires to sever the joint tenancy. Is that sufficient to effect a severance? I think it is. It was certainly the view of Sir Benjamin Cherry when he drafted s. 36(2) of the Law of Property Act 1925. It says in relation to real estates:
. . . where a legal estate (not being settled land) is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire or do such other acts or things as would, in the case of personal estate, have been effectual to sever the tenancy in equity, and thereupon under the trust for sale affecting the land the net proceeds of sale, and the net rents and profits until sale, shall be held upon the trusts which would have been requisite for giving effect to the beneficial interests if there had been an actual severance.
I have underlined the important words. The word ‘other’ is most illuminating. It shows quite plainly that, in the case of personal estate one of the things which is effective in equity to sever a joint tenancy is ‘a notice in writing’ of a desire to sever. So also in regard to real estate.
Taking this view, I find myself in agreement with Havers J in Hawkesley v May [1956] 1 QB 304, 313–314, and of Plowman J in In re Draper’s Conveyance [1969] 1 Ch 486. I cannot agree with Walton J [1975] Ch 222, 234–235, that those cases were wrongly decided. It would be absurd that there should be a difference between real estate and personal estate in this respect. Suppose real estate is held on a joint tenancy on a trust for sale and is sold and converted into personal property. Before sale, it is severable by notice in writing. It would be ridiculous if it could not be severed afterwards in like manner. I look upon s. 36(2) as declaratory of the law as to severance by notice and not a new provision confined to real estate. A joint tenancy in personal estate can be severed by notice just as a joint tenancy in real estate. . . .
It remains to apply these principles to the present case. I think there was evidence that Mr Honick and Mrs Rawnsley did come to an agreement that he would buy her share for £750. That agreement was not in writing and it was not specifically enforceable. Yet it was sufficient to effect a severance. Even if there was not any firm agreement but only a course of dealing, it clearly evinced an intention by both parties that the property should henceforth be held in common and not jointly.
On these grounds I would dismiss the appeal.
SIR JOHN PENNYCUICK: . . . I think it may be helpful to state very shortly certain views which I have formed in the light of the authorities.
(1) I do not think rule 3 in Page Wood V-C’s statement, 1 John & Hem 546, 557, is a mere sub-heading of rule 2. It covers only acts of the parties, including, it seems to me, negotiations which, although not otherwise resulting in any agreement, indicate a common intention that the joint tenancy should be regarded as severed.
I do not overlook the words which I have read from Page Wood V-C’s statement, namely, that you must find a course of dealing by which the shares of all the parties to the contract have been affected. But I do not think those words are sufficient to import a binding agreement.
(2) Section 36(2) of the Law of Property Act 1925 has radically altered the law in respect of severance by introducing an entirely new method of severance as regards land, namely, notice in writing given by one joint tenant to the other.
(3) Pre-1925 judicial statements, in particular that of Stirling J in In re Wilks, Child v Bulmer [1891] 3 Ch 59, must be read in the light of this alteration in the law; and, in particular, I do not see why the commencement of legal proceedings by writ or originating summons or the swearing of an affidavit in those proceedings, should not in appropriate circumstances constitute notice in writing within the meaning of s. 36(2). The fact that the plaintiff is not obliged to prosecute the proceedings is I think irrelevant in regard to notice.
(4) Perhaps in parenthesis because the point does not arise, the language of s. 36(2) appears to contemplate that even under the existing law notice in writing would be effective to sever a joint tenancy in personalty; see the words ‘such other act or thing.’ The authorities to the contrary are rather meagre and I am not sure how far this point was ever really considered in relation to personalty before 1925. If this anomaly does exist, and I am afraid I am not prepared to say positively that it does not exist, the anomaly is quite indefensible and should be put right as soon as possible.
(6) An uncommunicated declaration by one party to the other or indeed a mere verbal notice by one party to another clearly cannot operate as a severance.
(7) The policy of the law as it stands today, having regard particularly to s. 36(2), is to facilitate severance at the instance of either party, and I do not think the court should be over zealous in drawing a fine distinction from the pre-1925 authorities.
(8) The foregoing statement of principles involves criticism of certain passages in the judgments of Plowman J and Walton J in the two cases cited. Those cases, like all other cases, depend on their own particular facts, and I do not myself wish to go on to apply these obiter statements of principle to the actual decisions in these cases.
Finally, I would say that if, contrary to my view, there was a resulting trust in this case, I should have no doubt that, on the particular facts in the case, the resulting trust would be for Mr Honick and for Mrs Rawnsley in equal shares. I was referred to Robinson v Preston (1858) 4 Kay & J 505. The circumstances of the present case are I think plainly such as to take this case out of the general principle laid down in that case as applicable apart from particular circumstances.
I would dismiss the appeal.
RE 88 BERKELEY ROAD, NW9 [1971] 1 All ER 254, Chancery Division
FACTS: Two unmarried ladies, Miss Eldridge and Miss Goodwin, were joint tenants of their home, 88 Berkeley Road. Eldridge announced that she was getting married. Goodwin consulted solicitors, who advised her to sever the joint tenancy. The solicitors drafted a notice of severance and this was sent by recorded delivery to Eldridge at her ‘residence’, 88 Berkeley Road. When the postman called, Eldridge had already gone to work. Goodwin signed for the letter. Goodwin died soon afterwards. In the ensuing proceedings, Eldridge swore that she had never seen the letter. The question was whether there had been an effective severance of the joint tenancy.
HELD: There had been a severance, because the letter had not been ‘returned undelivered’ and was therefore notice of severance was deemed to have been properly served.
PLOWMAN J: Mr Bramall’s second submission was, if he will allow me to say so, an ingenious one. He pointed to the words in s. 196(4)—and I quote: ‘. . . if that letter is not returned through the post office undelivered’—and he submitted that the facts of the present case showed that the letter was delivered into the hand of Miss Goodwin: in other words, it was really delivered to the sender, because the solicitors who sent it were Miss Goodwin’s solicitors and her agents for this purpose, and that, since the letter was delivered into the hands of the sender, it was in effect returned through the Post Office undelivered.
Again, I do not feel able to accept that submission. In my view, the words ‘. . . if that letter is not returned through the post office undelivered’ refer to the ordinary case of the Post Office being unable to effect delivery at the address on the letter for some reason or other, such as that the addressee has gone away or the house is shut or empty. It does not, in my judgment, apply to a case like the present where the letter has in fact been delivered by the postman at the address to which it was sent.
The third submission which Mr Bramall made was to this effect, that where a section in an Act of Parliament is potentially creating an unjust situation, as would be the case here if the notice is to be taken as having been received by the plaintiff although she never received it, then the Act ought to be construed strictly, and that that involves strict proof that the relevant document—the letter containing the notice of severance, in this case—was in fact served. And Mr Bramall pointed out that Mr Bender, who was an assistant solicitor in the firm of solicitors who were Miss Goodwin’s solicitors at this time and who was responsible for dealing with this matter, could not actually prove putting the notice of severance in the envelope with the covering letter before it was sent. In my judgment, the onus of proof on the defendants here is no higher than proof that, on the balance of probabilities, that was done; and I feel no difficulty in reaching the conclusion that, on the balance of probabilities, it was in fact done.
For those reasons, I cannot accept Mr Bramall’s submissions on s. 196(4). . . .
In those circumstances, and with some regret having regard to my findings of fact, I feel bound to conclude that the notice of severance, even though never received by the plaintiff, was in fact sufficiently served for the purposes of s. 36(2) of the Law of Property Act 1925 with the consequence that the joint tenancy was severed during the lifetime of Miss Goodwin.
LAW OF PROPERTY (JOINT TENANTS) ACT 1964
(as amended by the Law of Property (Miscellaneous Provisions) Act 1994)
Assumptions on sale of land by survivor of joint tenants
(1) For the purposes of section 36(2) of the Law of Property Act 1925, as amended by section 7 of and the Schedule to the Law of Property (Amendment) Act 1926, the survivor of two or more joint tenants shall in favour of a purchaser of the legal estate, be deemed to be solely and beneficially interested if [. . .] the conveyance includes a statement that he is so interested.
Provided that the foregoing provisions of this subsection shall not apply if, at any time before the date of the conveyance by the survivor—
(a) a memorandum of severance (that is to say a note or memorandum signed by the joint tenants or one of them and recording that the joint tenancy was severed in equity on a date therein specified) had been endorsed on or annexed to the conveyance by virtue of which the legal estate was vested in the joint tenants; or
(b) [a bankruptcy order] made against any of the joint tenants, or a petition for such an order, had been registered under the Land Charges Act 1925, being an order or petition of which the purchaser has notice, by virtue of the registration, on the date of the conveyance by the survivor.
(2) The foregoing provisions of this section shall apply with the necessary modifications in relation to a conveyance by the personal representatives of the survivor of joint tenants as they apply in relation to a conveyance by such a survivor.
. . .
Exclusion of registered land
This Act shall not apply to any land the title of which has been registered under the provisions of the Land Registration Acts 1925 and 1936.
TRUSTS OF LAND AND APPOINTMENT OF TRUSTEES ACT 1996
Exclusion and restriction of right to occupy
(1) Where two or more beneficiaries are (or apart from this subsection would be) entitled under section 12 to occupy land, the trustees of land may exclude or restrict the entitlement of any one or more (but not all) of them.
(2) Trustees may not under subsection (1)—
(a) unreasonably exclude any beneficiary’s entitlement to occupy land, or
(b) restrict any such entitlement to an unreasonable extent.
(3) The trustees of land may from time to time impose reasonable conditions on any beneficiary in relation to his occupation of land by reason of his entitlement under section 12.
(4) The matters to which trustees are to have regard in exercising the powers conferred by this section include—
(a) the intentions of the person or persons (if any) who created the trust,
(b) the purposes for which the land is held, and
(c) the circumstances and wishes of each of the beneficiaries who is (or apart from any previous exercise by the trustees of those powers would be) entitled to occupy the land under section 12.
(5) The conditions which may be imposed on a beneficiary under subsection (3) include, in particular, conditions requiring him—
(a) to pay any outgoings or expenses in respect of the land, or
(b) to assume any other obligation in relation to the land or to any activity which is or is proposed to be conducted there.
(6) Where the entitlement of any beneficiary to occupy land under section 12 has been excluded or restricted, the conditions which may be imposed on any other beneficiary under subsection (3) include, in particular, conditions requiring him to—
(a) make payments by way of compensation to the beneficiary whose entitlement has been excluded or restricted, or
(b) forgo any payment or other benefit to which he would otherwise be entitled under the trust so as to benefit that beneficiary.
(7) The powers conferred on trustees by this section may not be exercised—
(a) so as prevent any person who is in occupation of land (whether or not by reason of an entitlement under section 12) from continuing to occupy the land, or
(b) in a manner likely to result in any such person ceasing to occupy the land,
unless he consents or the court has given approval.
(8) The matters to which the court is to have regard in determining whether to give approval under subsection (7) include the matters mentioned in subsection (4)(a) to (c).
If the trustees cannot resolve a dispute it may be necessary to apply to court under section 14 for a resolution of the dispute. The court may make any order it thinks fit “in relation to the exercise by the trustees of any of their functions” (section 14(2)(a)) or “declaring the nature or extent of a person’s interest in property subject to the trust” (section 14(2)(b)). When making an order the court must have regard to the matters listed in section 15.
TRUSTS OF LAND AND APPOINTMENT OF TRUSTEES ACT 1996
Matters relevant in determining applications
(1) The matters to which the court is to have regard in determining an application for an order under section 14 include—
(a) the intentions of the person or persons (if any) who created the trust,
(b) the purposes for which the property subject to the trust is held,
(c) the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and
(d) the interests of any secured creditor of any beneficiary.
(2) In the case of an application relating to the exercise in relation to any land of the powers conferred on the trustees by section 13, the matters to which the court is to have regard also include the circumstances and wishes of each of the beneficiaries who is (or apart from any previous exercise by the trustees of those powers would be) entitled to occupy the land under section 12.
(3) In the case of any other application, other than one relating to the exercise of the power mentioned in section 6(2), the matters to which the court is to have regard also include the circumstances and wishes of any beneficiaries of full age and entitled to an interest in possession in property subject to the trust or (in case of dispute) of the majority (according to the value of their combined interests). . . .
