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Flashcards in Co-Ownership Deck (54)
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1

Co-ownership

Where we have 2 or more people who own the same piece of land, it is known as co-ownership.

Where there is co-ownership, unity of possession is essential.

2

Trust of Land

Whenever land is co-owned a trust is imposed by statute, according to sections 36(2) and 34(2) Law and Property Act 1925 (“LPA”).

Such a trust is known as a trust of land, according to s1(1)(a) Trusts of Land and Appointment of Trustees Act 1996 (“TLATA”), which separates legal and equitable title to the land between the trustees and the beneficiaries.

In order to create an express trust, the declaration must be evidenced in signed writing as per s53(1)(b).

3

Initial Acquisition of Legal title

Co-Ownership

  • S1(6) LPA tell us that legal title can only be hold by way of joint-tenancy (“JT”).
  • s34(2) LPA 1925 holds that only a maximum of four people can hold legal title.
  • S34(2) also states that if there are more than four names mention on the conveyance, the first four named on the title deed who are of full age and sound mind will hold the legal title as trustees.
  • Full age is 18 according to s1 Family Law Reform Act.

4

Initial Acquisition of Equitable title

Co-Ownership

There is no maximum number of beneficiaries and the equitable title can be held either as joint tenants or as tenants in common.

4 unities must be present for a Joint tenancy (AG Securities v Vaughan)

If only unity of posession, will be a TIC

If different contributiont to purchase price, presumed TIC (Bull v Bull)

Words of severance also suggest TIC

5

AG Securities v Vaughan

Initial Acquisition of Equitable title

Co-Ownership

  • In order to be joint tenants, the four unities must be present
    • Unity of possession – no tenant can be excluded from any part of the land
    • Unity of interest – each tenant has the same estate
    • Unity of time – each tenant’s interest vests at the same time
    • Unity of title – all tenant acquire title under the same document
  • If not, but unity of possession is still present, it will be a tenancy-in-common

6

Bull v Bull

Initial Acquisition of Equitable title

Co-Ownership

If the parties have made differing contributions to the purchase price then there is a presumption of a tenancy in common.

7

Pink v Lawrence

Initial Acquisition of Equitable title

Co-Ownership

Express declarations of trust complying with s53(1)(b) LPA 1925 (signed writing by someone who can declare the trust) prevails over presumptions of joint-tenancy or tenancy-in-common

8

Payne v Webb

Initial Acquisition of Equitable title

Co-Ownership

"in equal shares" are words of severance, indicating a TIC

9

Fisher v Wigg

Acquisition of Equitable Title

Co-Ownership

"to be divided between" are words of severance, indicating a TIC

10

Heathe v Heathe

Acquisition of Equitable Title

Co-Ownership

"share and share alike" are words of severance, indicating a TIC

11

Re Kilvert Deceased

Acquisition of Equitable Title

Co-Ownership

"equally" is a word of severance, indicating a TIC

12

Lake v Craddock

Acquisition of Equitable Title

Co-Ownership

Commercial situations are presumed to be TICs, unless rebutted by express words

13

Significance of a Joint Tenancy

Co-ownership

  • In a JT, the tenants/co-owners constitute one legal owner.
  • On the death of a joint tenant his ownership immediately passes to the other joint tenants by right of survivorship – and not by will, because wills operate after death (Re Caines)

14

Significance of a Tenancy in Common

Co-ownership

  • In a TIC, each co-owner has a distinct but undivided share in the land, and shares can be unequal.
  • No right of survivorship applies.
  • It is possible to be a JT at common law and a TIC at equity

15

Severance of Legal Title

s36(2) LPA 1925

  • A JT can never be severed at law (s36(2) LPA 1925), only a beneficial JT can be.

16

Harris v Goddard

Severance

  • Severance separates off the equitable interest of the JT, and only affects the severing tenant – the others are still joint tenants of the rest. The severing tenant becomes a tenant-in-common
    • Unless there are just 2 JTs, in which case they both become TICs.

17

Goodman v Gallant

Severance

  • Severing JT gets an equal share regardless of contribution (unless there is an express agreement to the contrary)
    • E.g. if there are 5 JTs and 1 severs, that 1 has a 20% TiC and the others hold the 80% as JTs, even if the 1 had contributed 75% of purchase price

18

Death

Modes of Severance

  • Legal Title
    • Legal title can only be held by way of joint tenancy (s1(6) LPA 1925)
    • Not possible to sever a legal joint tenancy (s36(2) LPA 1925)
    • Doctrine of survivorship applies – legal title passes to other JTs (re Caines)
  • Equitable Title
    • JT – share will pass to other JTs
    • TIC – share will follow will – either to deceased’s estate or beneficiary

19

Written Notice

Modes of Severance

  • Legal title
    • Not possible to sever a legal joint tenancy (s36(2) LPA 1925)
  • Equitable Title
    • Form – must be in writing although no signature required (re Draper’s Conveyance)
    • Content – must demonstrate an unequivocal and irrevocable intention to sever immediately (Re Draper cf Harris v Goddard)
    • Deliver – must be delivered/left at last known address (s196(3) LPA
      • Has it been ripped up? (Kinch v Bullard)
      • Sent by registered post? Has it been returned? (s196(4) LPA 1925) (Re 88 Berkeley Road)

20

Re Draper's Conveyance

Written Notice

Modes of Severance

  • Court held that asking for sale and proceeds to be split was sufficient notice under s36(2) LPA 1925

 

  • Compare with Harris v Goddard

 

21

Harris v Goddard

Written Notice

Modes of Severance

  • A divorce petition alone was not sufficient notice as it didn’t necessarily mean severing AND it was in the future and severance must be immediate

 

22

Kinch v Bullard

Written Notice

Modes of Severance

  • Court said notice had been successfully served as had complied with statutory rule; notice had been left at last known abode.
  • Did not matter that wife had ripped up notice

23

Re 88 Berkeley Road

Written Notice

Modes of Severance

  • If notice is sent by registered post to last know address, and not returned undelivered, it will be regarded as served (s196(4) LPA 1925), regardless of whether all tenants have seen the notice

24

Williams v Hensman

An Act operating on own share

Modes of Severance

  • Legal Title
    • Not possible to sever a legal joint tenancy (s36(2) LPA 1925)

 

  • Equitable Title
  • A joint tenancy may be severed in 3 ways
    • UNILATERAL act – JT operates on his own share
      • Total Alienation - sold interest
      • Partial Alienation - leased or mortgaged interest
    • MUTUAL agreement of JTs
    • MUTUAL conduct of JTs

25

Total Alienation

An Act operating on own share

Modes of Severance

  • If Joint Tenant sells or gives away interest to someone else is effective to sever a JT
    • Disposition must be in signed writing by the person disposing - s53(1)(c) LPA 1925
    • New person comes in as TIC

26

Ahmed v Kendrick

Total Alienation

An Act operating on own share

Modes of Severance

Severance occurred where husband forged wife’s signature to sell jointly owned house and the registered transfer

27

Penn v Bristol & West Building Society

Total Alienation

An Act operating on own share

Modes of Severance

No severance where purchaser colluded in forgery by the husband

28

First National Securities Ltd v Hegerty

Partial Alienation

An Act operating on own share

Modes of Severance

Husband purported to mortgage jointly owned property by forging his wife’ signature.

Held to be a charge on his equitable interest only, which severed the joint tenancy

29

Re Gorman

Involuntary Alienation

An Act operating on own share

Modes of Severance

  • Bankruptcy – equitable interest will be severed and vest in creditor

 

  • Husband and wife were co-owners of matrimonial home. Wife had paid for house but transfer of land contained a declaration that they were to hold as joint tenants beneficially.
    • Upon bankruptcy of the husband, trustee was entitled to one half of value of house.

30

Re Draper's Conveyance

Involuntary Alienation

An Act operating on own share

Modes of Severance

  • Divorce proceedings that have become irrevocable can sever joint tenancy.