Has anyone come across anything that really clarifies in layman’s terms what the duties of a life tenant are when a life interest trust over land refers to the tenant keeping the property in a good state of repair - particularly with regard to minor plumbing matters etc. and things that a tenant under a tenancy agreement would not normally be expected to pay for. I can of course explain to the trustees their duty to maintain capital value etc. but the life tenant is approaching her occupancy like a tenant under a tenancy agreement…
I would also be grateful for any thoughts on this and also as to whether the trustees can allow anyone else to occupy the property. In my case the trustees (the testator’s children from her first marriage) do not trust the life tenant (the testator’s second husband from whom she was separated but not divorced) and thought that having a lodger in the property would mean they could make regular inspections. I should have thought they could inspect the property anyway to ensure the life tenant is meeting the condition that is kept in good repair and the preserve the value of the trust asset. They would also like a clearer idea of what the life tenant’s obligations are.
My comments below are on the basis that the deceased was the sole owner of the property in question. If she was a joint owner with her husband, then he will be a trustee of land and have control of the property, rather than the trustees of his late wife’s estate (who will have no effective control over the property).
If the husband has a right of occupancy of the property, I do not see that the trustees can impose a lodger upon him.
I see no reason why trustees should not have in place reasonable access arrangements to check the condition of the property and to satisfy themselves that the life tenant is complying with his obligations - if for no other reason that when they renew the insurance, they give a warranty as to the condition of the property.
I anticipate that the trustees are also the remaindermen entitled upon the termination of the life interest. If independent trustees were acting in their stead, would not the remaindermen expect such trustees to make regular checks to be satisfied that the life tenant was compliant? I see no reason, other than the personal relationships, why trustees should not undertake regular inspections (perhaps every couple of years) to be satisfied that the property is being maintained in an appropriate condition, and that the life tenant has not allowed “unauthorised “ occupation by a third party.
Trusts of Land and Appointment of Trustees Act 1996 covers this topic in s.13. In every case, at the earliest opportunity, the trustees should draw up an agreement covering the terms of occupation, by reference to this section, to avoid future misunderstandings.
This ‘tenancy’ confusion is not surprising given the lay person’s interpretation and knowledge of the term ‘tenant’, being someone who rents a property from a landlord.
Perhaps you should explain to her that for practical purposes, due to the life interest, she is an owner occupier of the property, not an actual tenant.
The will clause should ideally set out what the life tenant is expected to pay for, which is usually the insurance and maintenance of the property as owner.
Thank you for your very helpful responses. The will is clear re. insurance and maintenance but clearly an agreement covering the terms of occupation would clarify matters.
It is what constitutes maintenance/good repair that is problematic - essentially my understanding of the intention would be for the life tenant/occupant to keep the property in the state of repair that it was in when they began their occupation under the trust. In my case the occupant seems to have expectations that the trustees need to make such ‘improvements’ as she sees fit.
It is a question of clarification and managing expectations and hopefully things will settle - I think it is valuable to remember that at the outset all parties in these situations are grieving.
You cannot require the life tenant to keep “in good repair”. It is not an open market tenancy. All he can be required to do is to keep it in as good a condition as it was when he was let into occupation-hopefully after the agreement has been signed!!!
He cannot require any improvements to be made, that is a capital expense which must be justified, taking all circumstances into account on a case by case basis.
Keep the agreement short and simple-KISS is a good guide in these circumstances!