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Land Law > Co-ownership > Flashcards

Co-ownership Flashcards

1
Q

Co-ownership?

A

where more two or more people concurrently own and possess land.

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2
Q

Co-ownership trust for… arises?

A

land

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3
Q

Legal estate held by those to who it is conveyed as…

A

trustees for themselves beneficially.

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4
Q

Co-owned property can be held by way of a joint tenancy OR?

A

a tenancy in common

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5
Q

co-ownership -
legal title?

A

can be held as a joint tenancy by a maximum of four people, as trustees.

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6
Q

co-ownership -
equitable title?

A

only be held as a joint tenancy OR a tenancy in common by an unlimited number of people.

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7
Q

Co-owners – one single entity AND own the whole interest AND nothing…

Don’t own a share BUT have an… in the whole.

A

individually
interest

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8
Q

Unities of joint tenancy?

A

possession
interest
title
time

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9
Q

Joint tenant dealing with their ‘share’ will operate as a…

A

severance of the joint tenancy (in equity BUT not legal estate).

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10
Q

Joint tenancy -
Right to… applies.

A

survivorship

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11
Q

Tenancy in common -
Co-owner owns a…

A

distinct, undivided share.

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12
Q

Tenancy in common -
Only unity of possession is required.
Presence of other unities doesn’t…

A

preclude tenancy in common.

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13
Q

Tenant in common can deal with their share separately by…

A

selling OR mortgaging it.

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14
Q

Tenancy in common -
No right of… applies.

A

survivorship

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15
Q

Tenant in common:

A

Tenant in common dies.
Interest will pass to their estate in accordance with their will OR rules of intestacy.

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16
Q

Joint tenant:

A

Joint tenant dies.
Interest automatically passes to the remaining joint tenants.
Doesn’t pass under the will or intestacy.

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17
Q

Severance of joint tenants:

A

Joint tenancy can be converted to a tenancy in common by severance.
Applies only to equitable interest AND not the legal estate.
For severance to occur, MUST happen while the parties are alive AND not by will.

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18
Q

Severance -
Written notice?

A

notice MUST state an unequivocal AND irrevocable intention to sever immediately
AND
be severed on all the other joint tenants in equity.
The consent of the other joint tenants is not required.

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19
Q

Severance -
Acts operating on the joint tenants share?

A

acts such as, disposing of their equitable interest by sale, lease, gift, or mortgage, sever their equitable interest.

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20
Q

Severance -
Mutual agreement?

A

joint tenants agree OR act together to sever the joint tenancy supported by valuable consideration.

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21
Q

Severance -
Mutual conduct OR course of dealing?

A

joint tenants show through their conduct that they view themselves as owning separate shares.

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22
Q

Severance -
Bankruptcy?

A

causes the joint tenant’s equitable interest to be severed AND assigned to the joint tenant’s trustee in bankruptcy.

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23
Q

Severance -
Homicide?

A

one joint tenant unlawfully kills another joint tenant, cannot benefit from rule of survivorship AND the act severs their interest.

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24
Q

Event of a dispute between co-owners, an application can be made to court under…

A

s14 relating to either:
* Exercise by trustees of any of their functions.
OR
* Declaring the nature OR extent of a person’s interest in property subject to the trust.

The court will grant an order as the court thinks fit.

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25
Q

Pursuant to s15(1)

A

matters to which the court is to have regard when considering a Section 14 application include:
* The intentions of the person OR persons (if any) who created the trust.
* The purposes for which the property subject to the trust is held.
* Welfare of any minor who occupies OR might reasonably be expected to occupy any land subject to the trust as his home
AND
* Interest of any secured creditor of any beneficiary.

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26
Q

s15(3)

A

court will have regard to the circumstances AND wishes of any beneficiaries of full age
AND
entitled to an interest in possession in property subject to the trust.

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27
Q

Easement

A

right over one parcel of land for the benefit of another parcel of land
such as, a right of way.

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28
Q

Four essential characteristics of an easement are:

A

*There must be a dominant land and servient land
*Easement must accommodate the dominant land
*Dominant and servient land must not be owned AND occupied by the same person
*Easement must be capable of forming the subject matter of the grant

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29
Q

There must be a dominant land and servient land?

A

easement can’t exist in gross.
Must be attached to a dominant parcel of land.

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30
Q

Easement must accommodate the dominant land?

A

easement should benefit the land
AND
make it more convenient and not benefit the owner of the land alone.

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31
Q

Dominant and servient land must not be owned AND occupied by the same person?

A

can’t have an easement over your own land.

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32
Q

Easement must be capable of forming the subject matter of the grant ?

A

easement must be capable of exact definition AND be capable of being granted by deed.

33
Q

Easements can be created by:
(4 elements)

A

Express grant
Implied by necessity
Implied by common intention
Rule in Wheeldown v Burrows

34
Q

Express grant?

A

document expressly grants OR reserves an easement.

35
Q

Implied by necessity?

A

land has no other access AND is land-locked an easement of necessity may be granted.

36
Q

Implied by common intention?

A

easement is essential for the land to be enjoyed for the specific purpose for which the parties have mutually intended.

37
Q

Rule in Wheeldown v Burrows?

A

rule elevates quasi easements to full easements on the sale of part of the land provided:
 Quasi-easement existed prior to sale.
 Right is continuous AND apparent.
 Right is necessary for the reasonable enjoyment of the land sold.
 Right is in use at the time of the sale.

38
Q

Section 62 LPA 1925?

A

automatically by law passes in title all existing easements attached to the land WITHOUT the need for express wording in the conveyance provided:
 Conveyance for the transfer of a legal estate (e.g., sale of freehold OR grant of a legal lease of 3 or more years, mortgage, or a short lease of less than 3 years in writing).
 Right exists at the date of the conveyance.
 Diversity of occupation BETWEEN dominant and servient land.
 There is evidence of prior use.

39
Q

Prescription?

A

uninterpreted use for 20 years can create legal easements provided:
 right has been in use WITHOUT force, WITHOUT secrecy AND WITHOUT permission.
 Right’s use must have been continuous.
 User claiming the right must be by OR on behalf of one fee simple owner against another fee simple owner.

40
Q

Freehold covenants?

A

promise by the freehold owner to another freehold owner to do OR not to do something over his land.

41
Q

Burdened/Servient land:

A

Land bound by the covenant owned by the covenantor.

42
Q

Benefitted/Dominant land:

A

Land with the benefit of the covenant owned by the covenantee.

43
Q

Positive covenant:

A

Effort or expenditure required to perform the covenant obligation.

44
Q

Negative covenant:

A

No effort or expenditure required to perform the covenant obligation.

45
Q

Covenants?

A

not legal interests in land, BUT equitable interests AND must comply with s53(1) LPA 1925.

46
Q

Covenant is enforceable BETWEEN…

A

original contracting parties.

47
Q

Once land changes ownership, the way burden and benefit passes depend on…

A

if covenant is positive OR negative.

48
Q

Enforcement between successors in title means you MUST demonstrate…

A

how the benefit
AND
burden of covenants has passed.

49
Q

Benefit of the covenant:

A

It can’t be passed on at common law BUT can pass in equity.

50
Q

Three methods where positive covenants can be enforced against successors to burdened land:

A

Create a lease
Indemnity covenant
Doctrine of mutual benefit AND burden

51
Q

Create a lease?

A

positive and negative covenants ARE binding on a successor in title to a tenant.

52
Q

Indemnity covenant?

A

require the buyer to enter into an indemnity covenant to observe positive covenants AND indemnify the seller for any loss.

53
Q

Doctrine of mutual benefit AND burden?

A

person who wishes to claim the benefit of a deed MUST also submit to any corresponding burden in the same deed.
Rule in Halsall v Brizell.

54
Q

A covenantee’s successor can enforce the benefit of a covenant IF…

A

he can show the covenant has passed to them at common law.

55
Q

A covenantee’s successor can enforce the benefit of a covenant IF he can show the covenant has passed to them at common law.
This is where:

A
  • The covenant touches AND concerns the land.
  • Must have been an intention that the benefit should run with the estate owned by the covenantee.
  • Covenantee MUST have a legal estate in the benefitted land
    AND
  • Buyer of the benefitted land MUST also take a legal title in the benefitted land.
56
Q

Benefit of the covenant:

A

Burden of a negative covenant may pass in equity IF following requirements are met.
(Tulk v Moxhay criteria).

57
Q

Tulk v Moxhay criteria:

A
  • Covenant must be negative in substance.
  • Covenant must have been made to benefit the dominant land retained by the covenantee.
  • The covenant must touch and concern the dominant land.
  • The covenant must be made with the intent to burden the servient land
    AND
  • Owner of the servient land must have notice of the covenant.
58
Q

Burden of a negative covenant has passed in equity; it MUST be matched by…

A

the benefit passing in equity.

59
Q

Three possibilities in equity:

A
  • Annexation
  • Assignment
  • Building schemes
60
Q

Annexation?

A

Express annexation – wording shows that benefit is being attached to the land.
Implied annexation – where annexation was intended AND to ignore it would be unjust.
Statutory annexation – s78 LPA 1925, automatically annexes to land WITHOUT need for express provided covenant post 1925 AND meets the touches/concerns land test.

61
Q

Assignment?

A

expressly assign benefit of a covenant to a successor IF signed in writing by covenantee and covenantor has been given written notice of assignment.

62
Q

Building schemes?

A

conditions met, reciprocal obligations imposed BETWEEN buyers of plots from a common owner, including positive covenant.

63
Q

Breach of positive covenant?

A

damages AND specific performance

64
Q

Breach of restrictive covenant?

A

injunction AND damages in lieu of an injunction.

65
Q

Mortgage?

A

security interest over land granted by the borrower in favour of the lender to secure any amount owing to the lender under a loan.

66
Q

Mortgage is a legal interest in land. Deed is required to create a legal mortgage regarding…

A

a legal estate.

67
Q

Event that a borrower fails to repay money owing to the lender OR breach any other covenants in loan documentation.
Considered…

A

a default under loan agreement ALLOWING lender to exercise its security interests AND enforce the mortgage.

68
Q

Lender has following remedies at its disposal pursuant to the mortgage:

A

Possession
Power of sale
Debt action
Appointing a receiver
Foreclosure

69
Q

Possession?

A

lender can take possession of a property following default by borrower.
Property residential, lender should attempt to resolve any arrears before taking back the property.
Property is a dwelling house in occupation, court order is required.

70
Q

Power of sale?

A

may be expressly in the mortgage document OR implied into the legal mortgage.
Lender must ensure power of sale has arisen AND exercisable.

71
Q

Debt action?

A

lender suing on the personal covenant to repay outstanding amount due under the mortgage.
Often used where there is a shortfall on the sale of property AND lender seeks to recover from the borrower.

72
Q

Appointing a receiver?

A

receiver will be appointed who has the power to demand and receive income from the property
AND
will use the income to pay any outgoings, insurance, interest AND/OR capital outstanding.

73
Q

Foreclosure?

A

this vests the property in the lender free from any rights of the borrower.
It brings the mortgage to an end AND the lender will have title to the property.
There are protections for the borrower to avoid foreclosure.

74
Q

Unregistered land -
Legal mortgage over unregistered land:

A
  • Lender has the right to take the title deed into custody as security for the mortgage
    OR
  • If the mortgage isn’t protected by taking the deeds into custody, then it should be protected by a Class C (1) Land Charge.
75
Q

Registered land:

A

Legal mortgage over registered land should be entered on the charges title of the register since it is a registrable disposition.

76
Q

Unregistered land:

A

Mortgagee has title deeds, will take priority over all other lenders.

77
Q

Lender doesn’t have title deeds, provided…

A

the earlier mortgage been registered as a Class C Land Charge
the earlier mortgage takes priority before a later mortgage.

78
Q

Registered land:
More than one charge
Order of priority is the date…

A

they are entered on the register AND not the date of creation.
Mortgage that appears first on the title register will rank first
AND
Be paid out first from any proceeds of sale.

79
Q

An interest created before the registration of a charge will only bind the lender if it is:
(3 elements)

A
  • Registered charge
  • Subject of a notice on the register
    OR
  • Overriding interest.

Land Law (4 decks)

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