Co-ownership

Question 1

What is co-ownership and how does it arise?

Answer 1

Co-ownership arises when land is owned by more than one person. It can be either concurrent co-ownership, where two or more people together own the same estate in the same piece of land at the same time, or co-ownership through joint purchase, where individuals jointly purchase their own homes.

Question 2

What is the process of changing the form of co-ownership from a joint tenancy to a tenancy in common called?

Answer 2

The process of changing the form of co-ownership from a joint tenancy to a tenancy in common is called severance.

Question 3

What are the requirements for co-ownership of land?

Answer 3

The requirements for co-ownership of land include unity of interest, unity of title, and unity of time. Unity of interest means that the interest in land held by each co-owner must be of the same nature and duration. Unity of title means that all co-owners must acquire their title from the same document. Unity of time means that the interest of each co-owner must vest at the same time.

Question 4

How can a notice of severance be served to other equitable joint tenants?

Answer 4

A notice of severance can be served by handing it over personally or posting it. If posted, it will be deemed served if it has been left at the last known place of abode or business of the joint tenants. If sent by registered post and not returned undelivered, it will be deemed served at the time a registered item would in the ordinary course of events be delivered.

Question 5

What happens if a co-owner decides to change their form of co-ownership from a joint tenancy to a tenancy in common?

Answer 5

If a co-owner decides to change their form of co-ownership from a joint tenancy to a tenancy in common, it is known as severance. The co-owner who severs holds an undivided share in the equitable interest, while the remaining co-owners continue to hold the remaining interest as joint tenants.

Question 6

What is the practical significance of holding land as a joint tenant or as a tenant in common?

Answer 6

The practical significance of holding land as a joint tenant or as a tenant in common arises when one co-owner dies. Joint tenants are regarded as a single entity, and therefore when one joint tenant dies, survivorship applies and the interest of the deceased joint tenant accrues to the surviving joint tenants. On the other hand, survivorship does not apply to an interest held by a tenant in common, which will pass in accordance with the deceased’s will or under the intestacy rules if there is no will.

Question 7

What is the difference between legal title and equitable title in co-ownership?

Answer 7

In co-ownership, the legal title to the land is held by the trustees, who have powers and duties of management. The equitable title is held by the beneficiaries, who have a proprietary right (an equitable interest) in the land subject to the trust. The legal title is registered at the Land Registry, while the equitable title does not appear on the registers.

Question 8

What is the effect of severance on co-ownership?

Answer 8

Severance does not bring co-ownership to an end; it simply changes the basis on which the equitable co-owners continue to hold the equitable title. Before severance, three co-owners hold the equitable title as joint tenants. If one of them dies, the deceased joint tenant’s interest accrues to the remaining two co-owners. After severance, the right of survivorship does not apply to an interest that has been severed. If a co-owner has severed their interest in equity, the deceased tenant in common’s share passes under their will or by the intestacy rules if there is no will.

Question 9

What is the significance of the provision stating that a notice is deemed to have been served?

Answer 9

The provision stating that a notice is deemed to have been served means that the notice is considered served when it has been delivered. It does not require the notice to be received or read. This has been confirmed by case law.

Question 10

What are express trusts and how are they created in co-ownership?

Answer 10

Express trusts of land are created when a piece of land is transferred to one person to hold on trust for another. The person holding the legal title is the trustee, while the person holding the equitable interest is the beneficiary. Formalities, such as a written declaration of trust signed by the declarant(s), must be followed to create an express trust.

Question 11

What are the modes of severance for an equitable joint tenancy?

Answer 11

The modes of severance for an equitable joint tenancy are notice in writing and other acts or things. Notice in writing involves giving a notice to all other equitable joint tenants, demonstrating an unequivocal and irrevocable intention to sever the joint tenancy. Other acts or things refer to unilateral acts by a joint tenant, mutual agreement of the joint tenants, or mutual conduct that indicates the interests are treated as constituting a tenancy in common.

Question 12

What are the rules for holding the legal title in co-ownership of land?

Answer 12

The rules for holding the legal title in co-ownership of land are kept simple. There must be a maximum of four legal owners, who must be of full age and sound mind. The legal title holders must hold the property as joint tenants, meaning they must have unity of interest, unity of title, and unity of time. If land is transferred to more than four people, the first four named who are of full age and sound mind will be the legal title holders.

Question 13

What happens if only a few of the equitable joint tenants are served with a notice of severance?

Answer 13

If only a few of the equitable joint tenants (not all of them) are served with a notice of severance, the notice is completely ineffective. This was established in the case of Kinch v Bullard [1999] 1 WLR 423.

Question 14

What are implied trusts and how do they arise in co-ownership?

Answer 14

Implied trusts of land can arise informally, without any writing. They can be resulting trusts or constructive trusts. Resulting trusts may be implied when a property is bought in one person’s name but another person makes a financial contribution. Constructive trusts respond to unconscionability and are imposed when it would be unconscionable for the legal owner to deny the interest of another person.

Question 15

What is the purpose of the Law of Property Act 1925 in relation to severance?

Answer 15

The Law of Property Act 1925, specifically section 36(2), governs the process of severance. It states that it is not possible to sever a legal joint tenancy; only an equitable one can be severed. The reason for this is to preserve the simplicity of the legal title. If legal trustees could sever the joint tenancy and leave an interest held as a tenancy in common to others, it would complicate the legal title by increasing the number of legal owners and requiring additional documents to prove proper acquisition of title.

Question 16

What is the effect of severance on the legal and equitable title of a joint tenancy?

Answer 16

Severance does not affect the legal title, which must be held by co-owners as a joint tenancy. However, severance affects the equitable title, allowing co-owners to choose to hold it as joint tenants or tenants in common.

Question 17

What is the purpose of severance in co-ownership?

Answer 17

Severance is the process of separating off the share of a joint tenant in co-ownership. It converts joint tenancy into tenancy in common, where the parties hold separate shares. The right of survivorship no longer applies.

Question 18

What is the difference between the legal title and the equitable title in co-ownership of land?

Answer 18

The legal title is the public face of co-ownership, where the trustees are named as registered proprietors on the proprietorship register at the Land Registry. The legal title holders deal with buyers and lenders. On the other hand, the equitable title is the private face of co-ownership, where the names of the equitable owners do not appear on the registers of title and the way the equitable interests are held is not disclosed.

Question 19

How can an equitable joint tenancy be severed by notice in writing?

Answer 19

An equitable joint tenancy can be severed by giving a notice in writing to all other equitable joint tenants. The notice does not need to be signed but must demonstrate an unequivocal and irrevocable intention to sever the joint tenancy immediately. It must also be served correctly, given to all other joint tenants, and can be handed over or left at their last known place of abode or business.

Question 20

What was the outcome of the case Re 88 Berkeley Road [1971] Ch 648?

Answer 20

In the case of Re 88 Berkeley Road [1971] Ch 648, the court ruled that there was no distinction between giving and serving notice. The notice was effectively served under LPA 1925, s 196(4) by registered post as it had been signed for and had not been returned undelivered.

Question 21

How does severance affect the shares of former joint tenants?

Answer 21

If a joint tenant successfully severs the equitable joint tenancy, they will hold a tenancy in common, which is an equal share based on the number of former joint tenants, not on the proportion of contributions made to the initial price. The remaining equitable joint tenants will continue to hold the equitable title as joint tenants. However, if there are only two joint tenants, severance will affect both of them.

Question 22

How does co-ownership through joint purchase work?

Answer 22

Co-ownership through joint purchase occurs when individuals jointly purchase their own homes. They share the ownership of the property concurrently, with both the legal and equitable titles held by the co-owners.

Question 23

What is the process of severing an equitable joint tenancy?

Answer 23

Severance is the process of converting an equitable interest held as a joint tenancy into an interest held as a tenancy in common. It can be done by any joint tenant. An express declaration that the owners hold as tenants in common will prevail, but falling short of an express declaration, words such as ‘in equal shares’ or ‘equally’ may indicate an intention to have separate shares.

Question 24

What are the three types of unilateral acts that can result in severance of a joint tenancy?

Answer 24

The three types of unilateral acts that can result in severance of a joint tenancy are acts of total alienation, acts of partial alienation, and involuntary alienation. Acts of total alienation occur when the severing owner disposes of the interest permanently, such as through sale or gift. Acts of partial alienation occur when the severing owner temporarily disposes of the interest, such as through mortgage or lease. Involuntary alienation occurs when a joint tenant is declared bankrupt by the court.

Question 25

What are the different types of trust of land?

Answer 25

The different types of trust of land are express trusts and implied trusts. Express trusts are created through formalities, while implied trusts can arise informally. Implied trusts can be resulting trusts or constructive trusts.

Question 26

What are the three ways identified by Page-Wood VC in Williams v Hensman (1861) 1 J & H 546 to sever a joint tenancy?

Answer 26

Page-Wood VC identified three possible ways to sever a joint tenancy: a unilateral act by a joint tenant operating on its own share, mutual agreement of the joint tenants, and any course of dealing that indicates the interests were mutually treated as constituting a tenancy in common.

Question 27

What is the effect of severance on the legal and equitable titles?

Answer 27

Severance is the process by which a joint tenant can convert an interest into a separate share held as a tenant in common. The legal owners will remain as joint tenants, and the equitable joint tenancy can be severed. If the severance is done by one of the methods recognized in section 36(2) of the Law of Property Act 1925, the joint tenant who instigates the severance will have a separate equitable share as a tenant in common. The remaining equitable joint tenants will continue to hold the equitable title as joint tenants.

Question 28

What is the role of trustees in co-ownership?

Answer 28

In co-ownership, the trustees hold the legal title to the land and carry out administrative functions. They sign documents such as mortgage and transfer deeds. The trustees have powers and duties of management.

Question 29

What is the requirement for severance by mutual agreement of joint tenants?

Answer 29

Severance by mutual agreement of joint tenants occurs when all equitable joint tenants agree that one person's interest is severed, creating a tenancy in common. The agreement does not need to be a specifically enforceable contract to sell the interest, but it must amount to an agreement that one person's interest is separate or severed.

Question 30

What is the distinction between total alienation and partial alienation as acts of severance?

Answer 30

Total alienation refers to acts of total alienation where the severing owner disposes of the interest permanently, such as through a sale or gift. Partial alienation refers to acts where the severing owner temporarily disposes of the interest, such as through a mortgage or lease.

Question 31

What is the role of beneficiaries in co-ownership?

Answer 31

In co-ownership, the beneficiaries hold the equitable title to the land. They are the true owners of the property and have a proprietary right (an equitable interest) in the land subject to the trust. The names of beneficiaries are kept private and do not appear on the registers.

Question 32

What are the two ways in which severance can occur according to the Law of Property Act 1925?

Answer 32

Severance of an equitable joint tenancy can take place by either notice in writing or 'other acts or things.' The latter is deliberately vague and was intended to continue recognizing the modes of severance identified in Williams v Hensman (1861).

Question 33

How can severance occur through mutual conduct?

Answer 33

Severance can occur through mutual conduct when the co-owners treat their interests as constituting a tenancy in common. This can be demonstrated by prolonged negotiations or conduct that suggests recognition and treatment of one person's interest as separate. However, severance through mutual conduct is dependent on the facts of the case and can be hard to prove.

Question 34

What happens when an equitable joint tenant mortgages their equitable interest?

Answer 34

When an equitable joint tenant mortgages their equitable interest, it is considered an act of severance, resulting in a tenancy in common. This is different from when all legal joint tenants create a legal mortgage or charge over the property, which does not result in severance.

Question 35

How are express trusts of land created?

Answer 35

Express trusts of land are created when a piece of land is transferred to one person to hold on trust for another. The trust must be evidenced in writing and signed by the declarant(s).

Question 36

What are resulting trusts and how do they arise in co-ownership?

Answer 36

Resulting trusts may be implied in co-ownership when a property is bought in one person's name but another person makes a financial contribution. The person holding the legal title holds the property on trust for both parties in proportion to their contributions.

Question 37

What is the effect of severance on the size of shares?

Answer 37

If a joint tenant successfully severs the equitable joint tenancy, they will hold a tenancy in common, which is an equal share depending on how many equitable joint tenants there were before severance. If there were only two equitable joint tenants before severance, both will hold as tenants in common. Severance only affects the owner who instigates the severance; the remaining equitable joint tenants will continue to hold their shares as joint tenants.

Question 38

What is the effect of severance on the interests of co-owners in an equitable joint tenancy?

Answer 38

Severance results in the co-owner who severs holding an undivided share in the equitable interest. The remaining co-owners continue to hold the remaining interest as joint tenants.

Question 39

What is the effect of one joint tenant unilaterally acting on their own share to sever a joint tenancy?

Answer 39

When one joint tenant unilaterally acts on their own share to sever a joint tenancy, it creates a logical inconsistency as joint tenants do not have a share in the first place. However, the act itself creates the share, and severance can take place without the knowledge or consent of the other joint tenant(s).

Question 40

What are constructive trusts and how do they arise in co-ownership?

Answer 40

Constructive trusts are imposed in co-ownership when it would be unconscionable for the legal owner to deny the interest of another person. They respond to unconscionability and can be imposed in various circumstances.

Question 41

What are the three types of unilateral acts that can result in severance?

Answer 41

The three types of unilateral acts that can result in severance are acts of total alienation, acts of partial alienation, and acts of involuntary alienation. Total alienation refers to permanent disposals of the interest, partial alienation refers to temporary disposals, and involuntary alienation occurs when a joint tenant is declared bankrupt.

Question 42

What are the formalities to be observed for a notice in writing to have the effect of severing a joint tenancy?

Answer 42

There are no particular formalities to be observed for a notice in writing to have the effect of severing a joint tenancy. The notice does not even need to be signed, but it must demonstrate an unequivocal and irrevocable intention to sever the joint tenancy immediately.

Question 43

What was the outcome of the case First National Security v Hegarty [1985] QB 850?

Answer 43

In the case of First National Security v Hegarty [1985] QB 850, the court held that a notice of severance sent by ordinary post and signed for by the recipient, even if not read, was effectively served and resulted in severance.

Question 44

What are the requirements for a notice in writing to be served correctly and have the effect of severing a joint tenancy?

Answer 44

To be served correctly and have the effect of severing a joint tenancy, the notice must be given to all other equitable joint tenants. It can be handed over or left at their last known place of abode or business. The notice does not have to be read to be effective, and severance takes place the moment the notice is served.

Question 45

What are the unities required for a joint tenancy to exist?

Answer 45

For a joint tenancy to exist, the co-owners must hold the four unities of title: unity of possession, unity of interest, unity of time, and unity of title.

Question 46

What is the requirement for a notice of severance to be validly served?

Answer 46

According to the Law of Property Act 1925, s 36(2), a notice of severance must be in writing and demonstrate an unequivocal and irrevocable intention to sever the equitable joint tenancy immediately. It must also be served correctly by giving it to all of the other equitable joint tenants.

Question 47

What is the effect of severance on the legal title?

Answer 47

Severance does not affect the legal title; the legal owners will remain as joint tenants. Severance only affects the equitable title, converting it into a tenancy in common.

Question 48

How can a joint tenancy be severed by mutual agreement?

Answer 48

Severance by mutual agreement occurs when all equitable joint tenants agree to sever one person's interest, thereby creating a tenancy in common. This mode of severance is closely linked to severance by mutual conduct, and the dividing line between the two is unclear.

Question 49

What is the effect of severance by other acts or things?

Answer 49

Severance by other acts or things refers to the ways in which an equitable joint tenancy may be severed by unilateral or mutual acts of the equitable joint tenants. This includes a unilateral act by one joint tenant, mutual agreement of the joint tenants, or any course of dealing that indicates the interests were mutually treated as constituting a tenancy in common.

Question 50

What is the significance of an agreement in severing a joint tenancy?

Answer 50

The significance of an agreement is not that it binds the parties, but that it serves as an indication of a common intention to sever the joint tenancy. In the case of Burgess v Rawnsley, the agreement to sever the joint tenancy was reached even though it was never acted upon and the interest was never actually bought.

Question 51

What is the concept of severance by mutual conduct?

Answer 51

Severance by mutual conduct occurs when the parties have not reached a point of mutual agreement to sever the joint tenancy, but their conduct demonstrates that they are treating their shares in the property as separate. It may arise from ongoing negotiations or a prolonged course of dealing, although it can be difficult to prove.

Question 52

What factors does the court consider when making a decision in relation to applications for orders under section 14 of TLATA 1996?

Answer 52

The court must consider all factors listed in section 15 of TLATA 1996. These factors include the intentions of the person(s) who created the trust, the purposes for which the property is held, the welfare of any minor occupying the land, the interests of secured creditors, and the circumstances and wishes of beneficiaries of full age or majority.

Question 53

What factors does Section 15(1) of TLATA 1996 require the court to consider in relation to the welfare of minors occupying or expected to occupy land subject to a trust?

Answer 53

Section 15(1) of TLATA 1996 requires the court to consider the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as their home. This factor is heavily dependent on circumstances, and the court may attach great weight to the continuity of living arrangements for young children.

Question 54

What are the requirements for holding legal title as joint tenants?

Answer 54

To hold legal title as joint tenants: - There can be a maximum of 4 legal owners. - All co-owners must be over 18. - Legal title must be held by the co-owners as joint tenants.

Question 55

How has the court's approach to the interests of secured creditors in cases of co-ownership changed over time?

Answer 55

Pre-TLATA 1996, the court tended to prioritize the interests of secured creditors even when there were children in the property and the purpose for which the property was bought continued. However, post-TLATA 1996, the interests of secured creditors are just one factor to be considered, and there is no presumption for or against a sale at the start.

Question 56

How can a joint tenancy be severed by unilateral acts?

Answer 56

Severance by unilateral acts can occur when one joint tenant sells, mortgages, or gifts their share, or when they are declared bankrupt. These acts operate on the share and can sever the joint tenancy.

Question 57

What are the characteristics of equitable title?

Answer 57

Equitable title has no maximum number of owners, minors can hold equitable title, and co-owners can hold it as joint tenants or tenants in common. It is important to understand the distinction between legal and equitable ownership and the rules that govern how it can be held.

Question 58

What does Section 15(3) of TLATA 1996 require the court to consider in relation to the circumstances and wishes of beneficiaries?

Answer 58

Section 15(3) of TLATA 1996 requires the court to have regard to the circumstances and wishes of any beneficiaries of full age or, in the case of dispute, of the majority (according to the value of their combined interests). The court must consider the wishes of beneficiaries who are over 18, and in case of a dispute, the majority's wishes are taken into account.

Question 59

What is the significance of prolonged negotiations in severance by mutual conduct?

Answer 59

Prolonged negotiations alone are unlikely to prove severance by mutual conduct, as ongoing negotiations suggest a lack of mutuality. In the case of Gore and Snell [1990], the court held that there was no point at which both parties considered that either of them had a separate share.

Question 60

What is the role of the court in resolving disputes relating to co-owned land?

Answer 60

The court has jurisdiction to hear applications regarding disputes involving co-owned land. It can make orders for sale, occupation, or determining the nature or extent of a beneficiary's interest. The court must consider all relevant factors listed in TLATA 1996, section 15, in reaching its decision.

Question 61

What does Section 14 of TLATA 1996 allow anyone with an interest in land to do?

Answer 61

Section 14 of TLATA 1996 allows anyone with an interest in land to apply to the court for an order in relation to that land. The usual form of order requested is an order for sale of the property, which can be postponed for a period of time.

Question 62

What happens to the interest of a tenant in common upon their death?

Answer 62

If a tenant in common dies, the right of survivorship does not apply. Their interest can pass under their will, and a third party can inherit the equitable interest, which continues to be held as a tenancy in common.

Question 63

What is the concept of mutual agreement in severing a joint tenancy?

Answer 63

Severance by mutual agreement occurs when all joint tenants agree, either expressly or impliedly, to change the basis on which they hold the equitable title to the property. It involves an agreement that one person's interest is separate or severed from the joint tenancy.

Question 64

What is the difference between mutual agreement and mutual conduct in property ownership?

Answer 64

Mutual agreement refers to parties explicitly agreeing to treat their shares in a property as separate, while mutual conduct refers to parties behaving in such a way over a period of time that demonstrates they are treating their shares in the property as separate.

Question 65

What is the purpose of the Trusts of Land and Appointment of Trustees Act 1996 (TLATA 1996) in relation to co-owned land?

Answer 65

TLATA 1996 provides provisions for the resolution of disputes relating to co-owned land. It grants courts jurisdiction to hear applications regarding disputes involving co-owned land, allowing anyone with an interest in the land to apply for an order relating to it. The court may make orders for sale, occupation, or determining the nature or extent of a beneficiary's interest.

Question 66

Under what circumstances is there a presumption of a tenancy in common?

Answer 66

There will be a presumption that the parties hold the equitable title as tenants in common when there are unequal contributions to the purchase price or when the property is purchased for commercial use. However, this equitable presumption can be overridden if the parties make an express declaration in the transfer deed to hold as equitable joint tenants.

Question 67

How can an interest in a trust of land be created?

Answer 67

An interest in a trust of land can be created either expressly or impliedly. An express interest arises when a trust of land is declared in writing and signed by the declarant. An implied interest can arise when a person makes a financial contribution to the purchase price of the property, creating a trust without any formality requirement.

Question 68

How is an interest in a trust of land protected?

Answer 68

An interest in a trust of land is protected by a restriction in the proprietorship register of the title. This acts as an alert and instruction to anyone inspecting the registered title, informing them of the existence of the trust. If the land is sold or mortgaged, the interest is overreached, meaning it is transferred from the land to the monies paid to the trustees.

Question 69

What does unity of possession mean in joint tenancy?

Answer 69

Unity of possession means that all co-owners need to be equally entitled to possess the whole of the premises.

Question 70

What is overreaching in relation to an interest in a trust of land?

Answer 70

Overreaching is the process by which the equitable interest in the land is transferred from the land to the monies paid to the trustees. For overreaching to occur, the purchase money or loan must be paid to two trustees (or two legal owners if there are two) or one legal owner and another appointed trustee. If overreaching does not occur, the beneficiary may have an overriding interest in the land if they are in actual occupation of the land.

Question 71

A commercial property is purchased by A and B who each contribute half of the purchase price. The legal title is registered in A’s name only. What is the position regarding A and B? A holds the property on constructive trust for A and B A holds the property on resulting trust for B A holds the property on constructive trust for B There is no trust as A is named as legal owner A holds the property on resulting trust for A and B

Answer 71

A holds the property on resulting trust for A and B

Question 72

Which of the following best describes the position of the legal owners where there is a trust of land? They are able to sign transfer deeds and mortgage documents They are the registered owners in the proprietorship register They are entitled to an equal share of the sale proceeds They are trustees acting in an administrative capacity They are the absolute owners of the land

Answer 72

They are trustees acting in an administrative capacity This is correct. The legal owners are named as the proprietors in the register, but have duties of trusteeship. They have the power to sign transfer deeds, contracts and mortgage documents but they hold the property on trust for the beneficiaries.

Question 73

A couple (A and B) buy a registered property together, each contributing 50% of the purchase price and being registered jointly as the legal owners as the Land Registry. Is a trust imposed in the circumstances? Pick the best option that explains the position below. No, a trust will not be imposed because the legal and equitable title would be held by the same people so it is not necessary in the circumstances Yes, a trust is automatically imposed. A and B hold the property on trust for themselves. They are both the legal and equitable owners. No, a trust will not be imposed because A and B are both registered as the legal owners so it is not necessary in the circumstances.

Answer 73

Yes, a trust is automatically imposed. A and B hold the property on trust for themselves. They are both the legal and equitable owners.

Question 74

What formalities must be complied with in order to create an express trust of land?

Answer 74

The declaration of trust must be evidenced in writing signed by the person creating the trust.

Question 75

Which of these statements is an accurate explanation of unity of time? The co-owners must move into the property at the same time. The co-owners must sign the transfer deed at the same time. The co-owners’ interests must all last for the same length of time. The co-owners’ interests must all take effect at the same time.

Answer 75

The co-owners’ interests must all take effect at the same time.

Question 76

Which one of the following is essential in order for co-ownership to exist? Unity of intention Unity of possession Unity of title Unity of interest Unity of time

Answer 76

Unity of possession

Question 77

In which of the following circumstances will an equitable tenancy in common be presumed? Where there have been equal contributions to the purchase price Where the land is bought as a home Where there is wording such as ‘in equal shares’ Where there is no express declaration of joint tenancy Where there have been unequal contributions to the purchase price

Answer 77

Where there have been unequal contributions to the purchase price This is correct. This will be presumed in non-domestic cases only. The presumption can be rebutted by an express declaration of an equitable joint tenancy.

Question 78

What effect does making a will have on an equitable joint tenancy? It will sever the equitable joint tenancy It will sever the legal joint tenancy It will sever the legal and equitable joint tenancies It will have no effect

Answer 78

It will have no effect

Question 79

A and B bought a property together and paid 75% and 25% of the purchase price respectively. They declared themselves to be equitable joint tenants. A severed the joint tenancy. What is the position now in equity? A is now a tenant in common as to 75% and B is a joint tenant as to 25% A is now a tenant in common as to 50% and B is a joint tenant as to 50% A and B are now tenants in common as to 50% each A and B are now tenants in common as to 75% for A and 25% for B

Answer 79

A and B are now tenants in common as to 50% each When the joint tenancy was severed, A received an equal share irrespective of the size of A’s initial contribution: Goodman v Gallant

Question 80

Which statement best describes the effect of severance of an equitable joint tenancy? It brings co-ownership to an end It changes the basis on which the equitable title will be held in future It prevents survivorship from operating It enables a co-owner to dispose of his equitable share to whoever he pleases

Answer 80

It changes the basis on which the equitable title will be held in future This is correct. Severance does not destroy co-ownership but simply changes the basis on which the parties hold the equitable interest in the future

Question 81

A, B, C and D bought a house together. A and D contributed 15% of the purchase price each; B contributed 20% and C contributed 50%. They declared themselves to be equitable joint tenants. C severed the joint tenancy. What share will C now have? C continues as legal joint tenant but has 50% of the equitable title as tenant in common C has 25% of both the legal and equitable titles C has 50% of both the legal and equitable titles C continues as legal joint tenant but has 25% of the equitable title as tenant in common

Answer 81

C continues as legal joint tenant but has 25% of the equitable title as tenant in common This is correct. The legal joint tenancy cannot be severed. If the equitable joint tenancy is severed the holder takes an equal share as tenant in common, irrespective of the size of their initial contribution

Question 82

On whom must notice in writing be served to effect severance? On all equitable joint tenants On all legal and equitable joint tenants On all equitable owners On all legal and equitable owners.

Answer 82

On all equitable joint tenants

Question 83

What statutory formalities apply to a notice in writing? The notice must be made in signed writing. The notice in must be in writing, incorporate all the relevant terms and must be signed The notice must be contained in a valid deed The notice need not comply with any formalities

Answer 83

The notice need not comply with any formalities

Question 84

The main purpose of the writing may not be severance, but the intention to sever can be implied from what is written. Which of the following pieces of writing (if either of them) is severance likely to be inferred from in the circumstances? Severance cannot be inferred from either of the other options in the circumstances. A request for such order ‘as may be just’ relating to the matrimonial home An application to court for an order that the matrimonial home be sold immediately and the proceeds of sale split equally.

Answer 84

An application to court for an order that the matrimonial home be sold immediately and the proceeds of sale split equally. Yes this is correct and is akin to the facts of Re Draper’s Conveyance [1969] where a divorce petition that had this wording was held to be enough to sever the joint tenancy.

Question 85

Why was there no severance by mutual conduct in Gore and Snell v Carpenter? Because the ongoing negotiations had not produced a final agreement Because the ongoing negotiations had not continued for a long enough period Because it was not possible to infer from ongoing negotiations any mutual working towards a final end in view

Answer 85

Because it was not possible to infer from ongoing negotiations any mutual working towards a final end in view This is correct. The negotiations did not have any particular aim (unlike in Davis v Smith) and there was no evidence that there was no ‘mutual’ acceptance that Mrs Carpenter would hold tenancies in common. In that situation, the parties were not ‘mutually’ conducting themselves towards the same end.

Question 86

In Burgess v Rawnsley what did the court say must be present in order for the joint tenancy to be severed by mutual agreement? An inferred agreement to end the co-ownership An express or inferred agreement to change the basis on which co-ownership will continue An express agreement to sell the property A specifically enforceable contract for one party to ‘buy the other out’

Answer 86

An express or inferred agreement to change the basis on which co-ownership will continue This is correct. Co-ownership does not end on severance of the joint tenancy: it continues on a different basis. An agreement to do this can be expressly stated, or (as in this case) inferred from what the parties said and did.

Question 87

X and Y are equitable joint tenants. Their relationship breaks down and they each instruct solicitors to agree how their assets, including the property will be separated.They do not come to an agreement before Y dies.

Answer 87

Mutual conduct (possibly)

Question 88

X and Y are equitable joint tenants. Their relationship breaks down and X agrees to buy Y's share of the house for £100,000. The agreement is formalised and Y subsequently decides it wants £110,000 instead.

Answer 88

Mutual agreement

Question 89

X is the equitable joint tenant of a house in which it shares with two other co-owners. X was declared bankrupt last week.

Answer 89

Involuntary alienation

Question 90

X, Y and B are equitable joint tenants. Y mortgages its equitable interest in the property.

Answer 90

Partial alienation

Question 91

X, Y and B are equitable joint tenants. They together grant a legal mortgage over the property.

Answer 91

No severance

Question 92

X, Y and B are equitable joint tenants. X gifts its equitable interest to Y.

Answer 92

Total alienation

Question 93

Why did the judge in Davis v Smith conclude that the joint tenancy had been severed by mutual conduct? The parties had agreed to put the house on the market The parties had engaged in prolonged negotiations The parties had negotiated on the basis that their assets including the house would be realised and divided. The parties had already split the proceeds of surrender of a life policy

Answer 93

The parties had negotiated on the basis that their assets including the house would be realised and divided.

Question 94

Who is entitled to make a court application in relation to co-owned land under Trusts of Land and Appointment of Trustees Act 1996, s 14? Anyone who has an interest in the land Anyone who has or expects to have an interest in the land The legal owners only The legal owners and any legal mortgagees only The beneficial owners only

Answer 94

Anyone who has an interest in the land

Question 95

Which of the factors in Trusts of Land and Appointment of Trustees Act 1996, s 15 is given the greatest weight in making a decision, according to the provisions set out in the statute? The statute states that the interests of minors living in the property carry greater weight. None – the statute gives no indication of any factor having greater weight than the others. The statute states that the interests if secured creditors carry greater weight. The statute states that the purpose for which the property was purchased carries greater weight. The statute states that the circumstances and wishes of the beneficiaries carry greater weight.

Answer 95

None – the statute gives no indication of any factor having greater weight than the others.

Question 96

Test to establish whether it is a joint tenancy or a tenancy in common in equity?

Answer 96

* Unity of possession – each co-owner has the right to possession of all of the land. Actual possession is not required. Unity of possession is required for both a joint tenancy and a tenancy in common in equity. * Unity of interest – each co-owner must have identical rights over the land. This is the hallmark of a joint tenancy. A tenancy in common can have unequal shares and, therefore, no unity of interest. * Unity of title – each co-owner must have acquired their interest from the same document. For example, the same transfer or conveyance. * Unity of time – the co-owners receive their interests at the same time. The second test: does the deed transferring the land to the co-owners contain an express declaration? This is conclusive. The third test: does the deed transferring the land to the co-owners contain words of severance? The fourth test: does equity presume a tenancy in common?

Question 97

Methods of severance?

Answer 97

Written notice * Acts operating on the joint tenant’s share * Mutual agreement * Course of dealing * bankruptcy; * homicide; and * post-acquisition money management.