The significance of parties having registered
‘home rights’ when the court exercises its discretion under s 14 of the
Trusts of Land and Appointment of Trustees Act 1996.
The Claimant (‘FPH’) had obtained judgment
against the First Defendant (‘IG’) secured by charging orders over the First
and Second Defendant’s family home (‘the Property’).
The Property was in the sole name of IG, however
the Second Defendant (‘AG’) claimed a beneficial interest. AG had registered
her ‘home rights’ not to be evicted or excluded from the property under the
Family Law Act 1996 (‘FLA’)
and had obtained a charge on IG’s interest. The couple’s children were also
resident at the Property and attended a local specialist school.
The judge observed that when exercising his
discretion under s 14 of the Trusts of Land and Appointment of Trustees
Act 1996 (‘TOLATA’) the court would give regard to the factors enumerated at s 15(1)
of TOLATA. However, authority suggested that the court should give precedence
to the commercial interests of the creditors (Bank of Ireland Home Mortgages Ltd v Bell  2 All E.R. (Comm) 920).
Section 34(2) FLA provided that ‘home rights’ could be
restricted or terminated if it was just and reasonable to do so. In deciding
whether this was the case the court would have regard to the factors listed at
s 33(6) FLA. These factors were different to the s 15(1) TOLATA
factors and included the housing needs, financial resources and the likely effect
of any order on the wellbeing of the parties or any relevant child.
The judge observed the
tension between the competing criteria and also the absence of any authority on
the issue. However, he also held that were he to give precedence to AG’s home
rights then an anomaly would arise as AG would be treated differently to a
spouse who did not have home rights. The judge then noted the importance of
like cases being treated in the same way and held that he would make an order