A life tenancy exists where an individual owns an interest in property for the term of his or her natural life. The interest is extinguished upon the death of that person and is thereafter passed to someone else. The person to whom the interest passes is called the “remainderman”. Typically, this type of estate or interest in land is created when someone is doing planning for their estate.The land that is held under a life tenancy is referred to “settled land” and is governed by the provisions of the Settled Land Act. The gift of a life interest in a Will usually reads “I give my interest in my home to A for the term of her natural life and thereafter to B”. This means that A, is in essence the owner of the property for the duration of her life and is holding it on trust for B.

A therefore cannot pass the interest under a Will or through intestacy even where B predeceases her. Upon the death of A the property can only be passed to B or his heirs.

The life tenant however enjoys certain benefits of ownership such as rental income and occupation of the premises. The life tenant may also deal in the property but is strictly regulated by the provisions of the Settled Land Act. These include:

1. power to sell, lease or mortgage the settled land and thereby can convert the settled land to money
2. Life tenant must sell at the best price (S. 6) so life tenant should first obtain a valuation report from a licensed Valuator to know the current market value
3. Life tenant can then make a contract to give effect to the sale (S. 5 SLA) and has power to sign the contract effecting such sale.
4. Life Tenant is to send written notice by registered mail to Trustee of intent to make a sale of the land. If at any time there are no trustees of a settlement, the life tenant or any person having an interest under the settlement may make an application to the court for trustees to be appointed however failure to appoint Trustees does not negate the sale.

 

5. Capital money (net sale proceeds of the sale) must be invested or applied by the trustees or under the direction of the court.
6. Notice must be posted not less than one month before making the sale. (S. 53 SLA).
7. Life tenant will be able to access any interest accrued on the capital money and the remainderman is entitled to the principal of the capital money ONLY AFTER the death of the life tenant.

The life tenant also has a fiduciary duty to the beneficiary, similar to that of Trustee or an Executor. The life tenant is to maintain and ensure the proper up-keep of the settled land. He is also empowered to make improvements thereon using the capital money.

Failure to maintain or reasonably protect the asset resulting in reduced value or its destruction will give rise to a cause for legal action against the life tenant. At all times, any act done by the life tenant in respect of the property, is for the interest and benefit of the remainderman.

This form of interest in land is typically used by spouses to protect the surviving spouse’s interest usually in the matrimonial home and is a useful option for that and other purposes provided the life tenant is educated as to his or her rights and responsibilities in relation to the property and the remainderman.

Nicole Sappleton is a Partner at Karene N. Stanley & Company Attorneys-at-Law and a part-time Lecturer at the Mico University College. She may be contacted at nsappleton@knscolaw.com. Email feedback to nsappleton@knscolaw.com.