As a joint owner of property, the law is clear that you and your brother who wants to sell are entitled under section 14 of the Trust of Land and Appointment of Trustees Act 1996 (often referred to as “Tolata”) to call for a sale of the house. The usual way for a Tolata claim to be defeated by someone who opposes it is for them to argue there are factors as set out in section 15 of the act or some kind of hardship for the property to be sold from underneath them.
Section 15 provides circumstances for opposing a section 14 claim as follows:
- the intentions of the person or persons (if any) who created the trust
- the purposes for which the property subject to the trust is held
- the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home
- the interests of any secured creditor of any beneficiary.
As I have said, the intentions of family members concerned at the time the trust of land was created 10 years ago and the purpose as to why it was created (to provide a home to your mum) have been fulfilled. On that basis there are no obvious section 15 factors your other brother could argue against a Tolata claim for an order for sale to be made by the court. This is also given you have not mentioned any potential hardship to him if you sell.
All this means the law is on your side. On a practical level though I fully understand you will want to issue a Tolata claim as a last resort. So, before that, I suggest you set out the strength of your legal position to your brother who is being obstructive. At the same time, get the house valued, say he can buy you out at market value if he wishes and give him a deadline for that. Also be clear that in default, a Tolata claim will be issued, with him to stand the costs if he loses (as on the face of it he will).
I hope this difficult family situation can be resolved amicably so that when your brother understands his obstruction to the sale has no legal merit, he will step aside. Then you can all hopefully grieve for your mum without the distraction of how to deal with her house as an ongoing source of sibling tension.
Ask a Lawyer is written by Gary Rycroft, solicitor at Joseph A Jones & Co, and published twice a month on Mondays. Email your questions to askalawyer@telegraph.co.uk
