3): Co-Ownership Flashcards
(29 cards)
What is co-ownership in land law?
- When 2+ people concurrently own and possess land.
- Legal estate held as joint tenants (max 4 trustees).
- Equitable estate held as joint tenants or tenants in common (unlimited number).
What arises when land is co-owned?
- A trust of land arises automatically under TOLATA 1996.
- Legal owners act as trustees for the equitable owners.
What’s the difference between legal and equitable title in co-ownership?
- Legal title: Only as joint tenants (max 4).
- Equitable title: As joint tenants or tenants in common.
What distinguishes a joint tenancy in equity?
- Treated as a single unit.
- Right of survivorship applies.
- All 4 unities must be present: Possession, Interest, Title, Time.
What distinguishes a tenancy in common in equity?
- Distinct, possibly unequal shares.
- Only unity of possession is required.
- No right of survivorship — interest passes under will or intestacy.
What is severance and how does it affect joint tenancy?
- Converts joint tenancy into tenancy in common.
- Affects only the equitable interest.
- Must occur during life (cannot be severed by will).
What are the methods of severance?
- Written notice (s.36(2) LPA 1925) — unequivocal and irrevocable.
- Acts on own share — e.g. sale or mortgage.
- Mutual agreement.
- Mutual conduct/course of dealing.
- Bankruptcy.
- Homicide of a co-owner.
What powers does the court have under TOLATA 1996?
s.14: Power to determine nature/extent of interest or order sale.
s.15: Court must consider:
- Intentions of trust creators
- Purpose of trust
- Welfare of minors
- Interests of secured creditors
What is an easement?
- Right benefiting dominant land over servient land (e.g. right of way).
- Enforceable right attached to land.
What are the 4 essential characteristics of an easement (Re Ellenborough Park)?
- Dominant + servient land must exist.
- Must accommodate the dominant land (not merely the owner).
- Separate ownership/occupation of lands.
- Capable of forming the subject matter of a grant (definable, legal).
How are easements created?
- Express (by deed).
- Implied by:
- Necessity (landlocked)
- Common intention
- Wheeldon v Burrows: continuous + apparent + necessary for enjoyment
- s.62 LPA 1925: converts licenses into easements on conveyance
What is required for s.62 LPA 1925 to operate?
- Legal conveyance (e.g. lease >3 years).
- Prior use of right.
- Diversity of occupation.
- Right must exist at time of conveyance.
What is the Rule in Wheeldon v Burrows?
Converts quasi-easement into legal easement upon sale if:
- Used before sale
- Continuous and apparent
- Necessary for reasonable enjoyment
- In use at time of sale
How can easements be acquired by prescription?
20+ years of use that is:
- Without force
- Without secrecy
- Without permission
- By/against fee simple owner
What is a freehold covenant?
- Promise between freehold owners concerning land use.
- Made by covenantor (servient) for covenantee (dominant).
What is the difference between positive and negative covenants?
- Positive: Do something (e.g. repair, pay).
- Negative/restrictive: Refrain from doing something (e.g. no building).
Are covenants legal or equitable interests?
- Equitable interests only.
- Must comply with s.53(1)(a) LPA 1925 (in writing + signed).
Can covenant burden pass at common law?
- No — burdens do not pass.
- Exception: Halsall v Brizell – benefit/burden linked (e.g. use + pay for access road).
How does the benefit pass at common law?
If all conditions met:
- Touches and concerns land
- Intent to run
- Original covenantee held legal estate
- Successor holds legal estate from/under original covenantee
When can the burden of a negative covenant pass in equity?
Tulk v Moxhay conditions:
- Covenant benefits dominant land
- Touches and concerns land
- Intention to bind successors
- Servient landowner has notice (registered: Charges Register or D(ii) Land Charge).
How can the benefit of a covenant pass in equity?
Annexation:
- Express (e.g. “for benefit of…”)
- Implied
- Statutory (s.78 LPA 1925)
Assignment: Written + notice to covenantor
Building schemes: Mutual enforcement across plots
What are remedies for covenant breaches?
- Positive covenant: Damages, specific performance
- Restrictive covenant: Injunction, or damages in lieu
What is a mortgage in land law?
- Legal interest used as security for a loan.
- Must be created by deed to be legal
What constitutes default under a mortgage?
-Non-payment (capital/interest)
-Breach of any loan condition
-lender can enforce security
