40Statutory trusts for sale or partition of property held in co-

40 Statutory trusts for sale or partition of property held in co- ownership (1) Despite any other Act but subject to subsection (3), if property (other than chattels personal) is held in co-ownership, the Court may, on the application of any of the co-owners, appoint trustees of the property and vest the property in the trustees, subject to encumbrances affecting the entirety but free from encumbrances affecting any undivided shares, to be held by them on a statutory trust for sale or on a statutory trust for partition. (2) In proceedings referred to in subsection (1) in respect of a statutory trust for partition for which consent is required under the Planning Act 1999 to effect the partition, the Court may authorise a co-owner to apply to the consent authority (within the meaning of that Act) for the consent for and on behalf of the co-owners, or any of them, despite the wishes of any other co-owner. (3) The Court must not vest property in trustees to be held by the trustees on a statutory trust for partition unless consent for the partition has been given under the Planning Act 1999. (4) If the entirety of the property is vested in trustees or personal representatives, those trustees or personal representatives are to, unless the Court otherwise determines, be appointed trustees under subsection (1) but subject, in the case of personal representatives, to their rights and powers for the purposes of administration. (5) If the entirety of the property is vested at law in co-owners the Court may appoint: (a) the Public Trustee or a trustee company, either alone or with one or 2 natural persons (who may be co-owners of the property); or (b) not less than 2 and not more than 4 natural persons (who may be co-owners of the property), Law of Property Act 2000 22 to be trustees of the property on either of the statutory trusts. (6) On the appointment of trustees under subsection (5), the property vests in the trustees. (7) If, on an application for the appointment of trustees on a statutory trust for sale, a co-owner who satisfies the Court that partition of the property would be more beneficial than sale of the property for the co-owners whose interests in the property comprise not less than one half of the value of the property, the Court may, with the consent of the encumbrancee of the entirety (if any), appoint trustees of the property on a statutory trust for partition or on a statutory trust for partition as to part of the property and on a statutory trust for sale as to the remainder. (8) If trustees for partition have prepared a scheme of partition, they must serve notice in writing of the scheme on all the co-owners who are adults and a co-owner who is dissatisfied with the scheme may, within one month after service of the notice on the co-owner, apply to the Court for a variation of the scheme. (9) If a co-owner is an intellectually disabled person, the notice is to be served on the person charged by law with the management and care of the property of the intellectually disabled person or, if there is no such person, on the Public Trustee. (10) If a co-owner is a person: (a) who is a minor; (b) who cannot be found or ascertained; or (c) as to whom it is uncertain whether the person is living or dead, the trustees may act on behalf of the person and retain land or other property to represent the person's share. (11) In proceedings in relation to the sale or partition of property held on a statutory trust, the Court may by order alter the statutory trust, and the trust so altered is to be taken to be the statutory trust in relation to that property. (12) Without limiting the power of the Court to alter a statutory trust under subsection (11), the Court may alter a statutory trust for partition to provide that: (a) an encumbrance which, prior to the appointment of the trustees, affected an undivided share is to continue to extend and apply to the share; and Law of Property Act 2000 23 (b) a mortgage created for raising equality money ranks in priority after an encumbrance referred to in paragraph (a). (13) If property becomes subject to a statutory trust for sale: (a) land is to be taken to be converted on the appointment of the trustees for sale unless the Court otherwise directs; and (b) in the case of joint tenancy – severance of the tenancy is not effected by sale under the trust alone. (14) This section applies to property which came or comes to be held in co-ownership before or after the commencement of this Act. (15) This section does not apply to: (a) property in respect of which a subsisting contract for sale is in force immediately before the commencement of this Act and the contract is completed in due course after that commencement; or (b) land in respect of which proceedings for partition are pending immediately before that commencement and an order for a partition or sale is subsequently made in the proceedings after that commencement.