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General principles

The Trusts of Land and Appointment of Trustees Act 1996, s 12 (TOLATA 1996) confers on any 'beneficiary who is beneficially entitled to an interest in possession in land subject to a trust of land' a right of occupation of the land if certain other conditions are fulfilled. The main requirements are that the land should be available and suitable for occupation by the beneficiary (Trusts of Land and Appointment of Trustees Act 1996, s 12).

This situation most commonly arises between co-owners who hold the land as bare trustees for themselves. However, it also applies to express trusts such as qualifying interests in possession (QIIP).

Where two or more beneficiaries have a right of occupation of the same land, the Trusts of Land and Appointment of Trustees Act 1996, s 13 empowers the trustees to exclude or restrict the rights of occupation of one or some (but not all) of them, and to impose reasonable conditions on beneficiaries whose rights of occupation are not restricted or excluded. These could include paying compensation