This section extends the powers conferred on trustees by Section 28 of the Law of Property Act 1925 (which is repealed by this Act). Subsection (1) is introduced by the words "For the purposes of exercising their functions as trustees." and it would seem the intention was to make it clear that these powers must be exercised in a fiduciary manner. It is not entirely clear, however, in other sections whether there is any distinction between "functions" and "powers" -- see, for example, Section 10(1) which deals with the obtaining of consent to the exercise by the trustees of any functions, which presumably includes their powers under Section 6, relating to the land.

Paragraph 10.9 of the Law Commission Report on Trusts of Land said in relation to this Section that although the powers conferred on trustees of land are very broad, their exercise would not be unfettered and that general equitable rules would continue to ensure that the power could only be properly exercised in the interests of the beneficiaries. What view the Courts will take of such extensive powers remains to be seen.

Section 8 provides that the powers conferred by this section do not apply in so far as provision to that effect is made in the document creating the trust (which may also require the obtaining of consents to doing te acts in question).

Sub-section (2) is a slightly odd provision. It provides that if beneficiaries of full age and capacity are "absolutely" entitled to the land, the trustees shall have power to convey the land to them. No difficulties of course arise if there is only one such beneficiary and the trustees are effectively holding the land on trust as his nominee. If however there are two or more beneficiaries then a conveyance of the land to them will effectively amount to an appointment of them as new trustees of the land. Section 34 of the Law of Property Act 1925 is modified in minor ways by Schedule 2 paragraph 3 but it still prevents the conveyance of land to persons in undivided shares, and provides that a conveyance to four or more persons shall operate in law to convey the land to the first four named in the conveyance.

The sub-section provides that (unless the disposition creating the trust provides to the contrary -- as to which, see section 8), the beneficiaries shall do what ever is necessary to secure that the land vests in them and if they fail to do so the court may make an order requiring them to do so. If an application is made to the Court for this purpose it appears that it is not to take the wishes of the beneficiaries into account -- Section 15(3.) Perhaps slightly surprisingly the powers conferred on the Court do not include power to make a vesting order vesting the land in the beneficiaries, even though Section 3(5) of the Law of Property Act 1925 provides that the Court can make such an order if the trustees refuse to convey the land to the beneficiaries when the latter request that to be done.

It is not entirely clear what is meant by "absolutely" in this sub-section. The words "in undivided shares" which appear in section 7(1) are missing from this sub-section but it would seem that this omission is probably only a drafting slip. There is no definition of the expression such as that to be found in Section 60(2) of the Taxation of Capital Gains Tax Act 1992. For a further discussion of this point see the Comments on Section 7 below.

Sub-section (3) provides that the trustees of land shall have power to purchase a legal estate in any land in England or Wales, and this power is also exercisable by the trustees of a trust of proceeds of sale of land and, subject to certain qualifications, by personal representatives -- Section 17(1) and Section 18(1).

The Trustee Investments Act 1961 confers on trustees power to invest in various forms of investment but does not itself confer on them power to invest in land. Trustees for sale were given by Section 28(1) of the Law of Property Act 1925 all the powers of a tenant for life and the trustees of a settlement under the Settled Land Act 1925. They were also usually given express powers to invest in land. It was, however, held in Re Power [1947] Ch 572, that such a power must be construed strictly and so did not authorise the purchase of a house for the occupation of a beneficiary who would otherwise be entitled to the income of the trust property. This decision has been criticised and the Law Commissioners recommended that the trustees of land should be given express power to purchase land either for investment or for occupation by a beneficiary^[1]. Section 28 has been repealed by this Act.

The Trustees are given power by sub-section (4) to exercise their power to purchase land

• by way of investment,
• for occupation by a beneficiary or
• "for any other reason".

• in contravention of any other enactment
• in contravention of any rule of law or equity
• in contravention of any order made in pursuance of any other enactment
• in contravention of any order made in pursuance of any rule of law or equity

Sub-section (8) provides that if another enactment confers on trustees powers similar to those conferred by this Section but imposes a restriction on their exercise, that restriction is still to apply.

The limitations imposed by sub-sections (6) and (8) of this Section do not affect a purchaser without actual notice -- Section 16(2).