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Rodway v Landy [2001] EWCA Civ 471

Restricting a right to occupy under TOLATA via a Court order.

Facts

Two doctors jointly purchased a property for the purposes of running a medical practice from it. The doctors contributed to the purchase price equally and thus were viewed to be joint tenants in law and tenants in common in equity. Following a disagreement, the claimant wished to sell the property, however the defendant did not and instead suggested the division of the property so that each may run their own practice. Initially, the Landy attempted to assert s.7 of the Trusts of Land and Appointment of Trustees Act 1996, s.7, to force the sale, however Rodway refused to give consent as a beneficiary. Subsequently Landy attempted to apply to the Court to forcibly partition the property asserting s.13(7) which allows for property rights to be exercised in the absence of the permission of beneficiaries in actual occupation, excluding or restricting this occupation, so long as there is judicial approval.

Issue

Whether Landy could reasonably use s.13(7) of TOLATA to request a court order to divide the property in spite of Rodway’s protests as a beneficiary.

Held

At first instance, the Court found for Landy, a decision which was subsequently upheld by the Court of Appeal. Here, the Court viewed that the property was physically suited to partitioning and thus it would not be an unreasonable or impractical matter for each doctor to establish their own practice. Moreover, Landy could reasonably require Rodway to contribute to the costs of such physical alterations.


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