Chapter 9: Co-ownership Flashcards
what is a joint tenancy?
legal and equitable title are owned collectively as a whole by all owners (shares are not based on contribution)
50/50 split law & equity
Max 4 legal owners
what are the keys to showcasing a joint tenancy?
Own land collectively
No separation of ownership
No specific shares
Does not matter if the contributed different amounts
Express declaration in purchase deed
Legal and equitable title owned by parties jointly
what is a tenancy in common?
legal title only is owned collectively as a whole by all owners but the equitable title can be owned in equal or unequal shares.
what happens to the proceeds of sale in a joint tenancy?
split equally (no matter original contributions)
when discussing ownership what does tenancy/ tenant mean?
means to own or hold an estate in the land
what are the requirements of a joint tenancy?
4 unities:
- possession
- interest
- title
- time
right of survivorship
what are the 4 unities?
Unity of possession - all owners of land/ property are able to use/ enjoy every piece of it collectively. No restrictions on use by one party to another.
Unity of interest - each co owner has identical rights in land/ property. Both registered as owners of the freehold. (Cannot have one party own freehold and one own leasehold)
Unity of title - co owners must have acquired their title in the same way (same transaction, same document)
Unity of time - each co owner acquired their interest at the same time (look out for conditional gifts = not the same time)
What is the right of survivorship and when does it apply?
Co- owner dies - automatically passes to the remaining joint tenants.
Takes precedent over any express wishes left in the will.
Only applies to joint tenancy
Only applies to legal title
if joint tenants die at the same time who is presumed?
presumed the oldest died first in law
what happens if there are more than 4 legal owners?
hold on trust for themselves and any additional owners = joint tenants in equity.
what is an undivided share?
equitable title (applies to tenancy in common)
each own a specific share but not a specific physical part of the land or property
can sell it or leave as a gift in their will.
What are the requirements for a tenancy in common?
ONLY unity of possession (each owner able to use the whole of the property - no restrictions by another).
what title can be severed?
only equitable title
what are the ways a joint tenancy can be severed?
By written notice
By operating in a party’s own share
By mutual agreement
By mutual conduct
Forfeiture following unlawful killing
what is written notice?
severance of joint tenancy:
Writing
Intention to sever must be immediate
Evidence it has been delivered
Does not need to be read by the other co owner providing conditions are met - severance will still take effect if it is posted.
what is joint tenant operating own share?
One of the co owners has done something to indicate they do not want an individual share e.g sells/ gives away equitable interest.
legal title remains
all other co-owners remain in joint tenancy
new beneficiary becomes a tenant in common of equitable interest
what is by mutual agreement?
Collective agreement between all joint tenants
Express or implied
Look for initial agreement, discussions of sale = common intention to sever
what does by mutual conduct mean?
Collective agreement between all co-owners
Decided on facts
HELD: inconclusive negotiations/ physical division of the land will NOT be severance unless there is very clear intention from both parties e.g agreement and actions consistent with the agreement.
what is forfeiture following unlawful killing?
A co-owner who unlawfully killed another co-owner should not benefit
which share will severance effect?
Only affect the equitable share UNLESS by mutual agreement/ conduct.
what is a trust of land?
agreement (express or implied) formal legal ownership is separated from the underlying/ equitable interest
joint tenancy/ tenancy in common
what is S14 of TOLATA
anyone with an interest can make an application to court to resolve the dispute (co-owners, mortgagees, trustees, trustee in bankruptcy).
what is S15 TOLATA
list of factors for court to consider:
intentions of persons who created the trust (legal/ equitable owners). No written deed = interpretation.
Purposes of property held on trust e.g family home - consider purpose at the time of application. (Why was the land/ property bought, majority?)
Welfare of minor who occupy/ reasonably expected to occupy (consider the age - younger = more weight - extends to grandchildren living with grandparents).
Interests of secured creditor of any beneficiary - (mortgagee power of sale if no payment)
can you change the type of trust in land?
Co-owners can change ownership from a tenancy in common to a joint tenancy with an application to HM Land Registry
all co-owners must agree and formally notify each other in writing
Deed/ declaration of trust
