Co-ownership

Question 1

What types of estate in land can co-ownership happen

Answer 1

Both leasehold and freehold estates
There can be only one exclusive owner or there can be multiple owners

Question 2

Why would some ppl become co-owners?

Answer 2

If the person cannot afford to purchase property on their own
If they’re a couple or family and want to co-own so that land doesn’t have to be transferred and taxed upon death

Question 3

What’s the main difference between a joint tenancy and a tenancy in common
State case

Answer 3

Mahon v lawlor
Key distinction is right of surviroshop in joint tenancy, when all joint tenants die but one, the remaining tenant will accrue all the interest in the property and the joint tenancy will dissolve

Question 4

What are the benefits of joint tenancy

Answer 4

No taxation cuz properly isn’t transferred

Question 5

What legislation concerns joint tenancy

Answer 5

Section 4c of the succession act

Question 6

Section 4c of the succession act

Answer 6

Provides that upon death, a joint tenant will not have any interest in the land that they can dispose of in their will

Question 7

State the case on joint tenancy

Answer 7

Kearny v permanent tsb

Facts: concerned husband and wife who were joint tenants and they had separated. When wife died in her will she disposed of the whole property to the daughter and said that the husband only had a right of residence

Issue: could her will supersede right of survivorship

Held: the wife’s will was deemed as in effective because it could not terminate a joint tenancy. Her interest in the property was null upon her death.

Question 8

Creation of joint tenancy: the 4 unions

Answer 8

Possession: all joint tenants have to have equal possession
Interest: all tenants must have the same kind of interest in the property, ie. All leaseholds or all freehold’s
Transaction- all must enter into the joint tenancy under the same transaction
Time- must enter into tenancy at same time

Question 9

What is a tenancy in common?

Answer 9

Only entity concerned is possession
Each owner has their own discltinct share/ undivided share in the property that they can dispose of in their wills
However, common law will presume the existence of a joint tenancy unless co- owners explicitly state otherwise

Question 10

What leg concerns tenancy in common

Answer 10

S91 of registration of title act

Question 11

S91 of reg of title act

Answer 11

Co owners can register their interest in the land ok the land registry
Law will presume existence of joint tenancy unless otherwise given notice of tenancy in common

Question 12

Equity presumption
StTs case

Answer 12

Equity will also follow law in that it presumes joint tenancy

McGrane v O’foghlu- there are some exceptional circumstances to rebut the presumption but here evidence wasn’t strong enough

Question 13

What will rebut equitable presumption

Answer 13

Words of severance
Business relations
Unequal contributions

Question 14

Words of severance

Answer 14

Twigg v twigg- beneficiaries of a will were indicative of a tenancy in common

Kennedy v Ryan- if parties explicit state that it is tenancy in common law will deem it as a tenancy in common

Question 15

Business relations

Answer 15

Malayan credit v jack

Co business owners who co owned leasehold estate
Intention to have their own undivided shares that weren’t subject to the whims of survivorship
Each made different financial contributions to the property

Question 16

Unequal contributions

Answer 16

O’CONNELL V HARRISON
purchased 2 different sisters shares,

Purchased it for business purposes so deemed to be tenancy in common

Question 17

Benefits of joint tenancy

Answer 17

Convenience
Protection
Tax
Joint tenancy number of tenants always decreasing so more likely to have exclusive ownership if you’re the last to diving’s

Question 18

Benefits of tenancy in common

Answer 18

Independence autonomy privacy

Predictability

Question 19

Unlawful killings and tenancy

Answer 19

Cawley v Lillie

Question 20

Termination of joint tenancy how

Answer 20

Severance

Question 21

Severance

Answer 21

Mahon v lawlor
Turns it from joint tenancy to tenancy in common where occupant in law inter vivos alienates their property or in equity by contract

Question 22

Severance in law

Answer 22

Acting as if they have an undivided share
When one co-owner pursues further interest in property
When Co-owner alienates shares

O malley v anor
Concerned litigation occurring post 2009 but sevarance pre 2009

Easier to get severance in common law

Question 23

Statutory reform

Answer 23

Section 30- joint tenancy converted into tenancy in common without consent is deemed null and void

Section 31: if one co-owner is unreasonably withholding consent for tenancy in common court can issue an order

Question 24

Section 30 case

Answer 24

ADM V BERGIN

Held: Allen J stated the unilateral severance does not strictly speaking require the cooperation of the other joint tenants but merely their consent. The other joint tenants must agree to it, but the severance is still affected by the act of the one.
The effect of severing a joint tenancy, in law and in equity, is not to convey or transfer the interest, or any part of the interest, of either co-owner to the other but to convert the undivided share of each joint tenant into an undivided moiety in the lands

Summary: Reinforces our understanding of the nature of the changes post-2009 act
The effect of severance isn’t to change/transfer the interest of land but to convert it into a tenancy in common where each has a distinct financial share in the property.

Question 25

Severance in equity how? State cases

Answer 25

Through mutual intention and course of dealings Williams v Hensmen Burges v Rawnsley Byrne v Byrne Re Hayes Estate

Question 26

Williams v Hensmen

Answer 26

Held: 3 key grounds for severance in equity: 1 tenant can act operating their own share- but consent is required. By mutual agreement- the interests of all the joint tenants constituted a tenancy in common By any course of dealing sufficient to intimate that the interests of all were mutually treated as consulting a tenancy in common.

Question 27

Burges v Rawnsley

Answer 27

Facts: Concerned a relationship between a widower and widow- mismatched intention The widower intended to marry the woman and with that in mind bought a house. The woman contributed to half of the house but didn’t want to marry him and wanted a flat in the house. Widower after finding out asked the widow to sell her parts of shares to him. Entered into an oral agreement but she then changed her mind. Issue: The widower died, at the moment of his death, was it a joint tenancy or a tenancy in common? Was the oral agreement evidence of a mutual agreement made to terminate the joint tenancy and make it tenancy in common? Held: The oral agreement was sufficient. The agreement established that the parties no longer intended to be joint tenants Un-communicated declaration by one to the other, or one of them telling the other that they intend to sever wasn’t sufficient, had to be mutually agreed upon.

Question 28

Byrne v Byrne

Answer 28

Held: The simple fact that they entered into a mutual contract that wasn’t completed doesn’t necessarily mean that there was a severance.

Question 29

Re Hayes Estate

Answer 29

Facts: Concerned the joint sale of a property. Half of the property was under a joint tenancy. The proceeds of the sale were used to buy stock. Held: The transaction didnt prove as evidence of an intention to get rid of that joint tenancy.

Question 30

Section 31(1) of LCLRA

Answer 30

Any person having an estate or interest in land if it's co-owned, even in law or equity can seek an order from the court.

Question 31

Section 31(2) of LCLRA

Answer 31

An order under this section includes: An order for partition. An order for accounting of the interests in the land. An order for sale. An order for accounting adjustments. An order dispensing of the need for consent for severance where it has been unreasonably withheld. An order relating to the land that the courts deem to be just and equitable.

Question 32

Section 31(3) of LCLRA

Answer 32

In dealing with an application for an order under 31(1) the court may: make an order with or without conditions or other requirements attached to it, or dismiss the application without making any order, or combine more than one order under this section.

Question 33

Section 31(4) of LCLRA

Answer 33

“person having an estate or interest in land” includes a mortgagee or other secured creditor, a judgment mortgagee or a trustee, “accounting adjustments” include: payment of an occupation rent by a co-owner who has enjoyed, or is continuing to enjoy, occupation of the land to the exclusion of any other co-owner, compensation to be paid by a co-owner to any other co-owner who has incurred disproportionate expenditure in respect of the land (including its repair or improvement), contributions by a co-owner to disproportionate payments made by any other co-owner in respect of the land (including payments in respect of charges, rates, rents, taxes and other outgoings payable in respect of it), redistribution of rents and profits received by a co-owner disproportionate to his or her interest in the land, any other adjustment necessary to achieve fairness between the co-owners. Prior to this section, this area of law was principally governed by the Partition Act 1868 which gave power to the courts to physically divide up the property.

Question 34

Prior to LCLRA enactment what was used