Co-ownership

Question 1

What is the meaning of co-ownership?

Answer 1

multiple owners with simultaneous rights to possession

Question 2

In relation to what type of estates?

Answer 2

Both leasehold and freehold

Question 3

Where is co-ownership possible?

Answer 3

Both in law and in equity

Question 4

Differences between co-ownership & successive ownership?

Answer 4

• Co-ownership
  1. simultaneous rights to possess
  2. unity of possession between A & B
• Successive
  1. A only entitled after B dies
  2. no unity of possession

Question 5

What does co-ownership in equity always involve?

which statute is important to this topic?

Answer 5

a trust of land

Trust of Land and Appointment of Trustees Act 1996 (TOLATA)

Question 6

What is the trustee entitled to under a trust?

Answer 6

• legal ownership rights
• fiduciary duties towards beneficiary

Question 7

What is the beneficiary under a trust entitled to?

Answer 7

• the property, in equity
  rights against trustee and third parties

Question 8

In what context is co-own relevant?

Answer 8

• family home (married OR unmarried)
• friends / neighbours
• commercial context

Question 9

What are the 2 types of co-own?

Answer 9

• joint tenancy
• tenancy in common

Question 10

What is a tenancy in the context of co-own?

Answer 10

• holding land
• another word for ownership
• NOT a lease here

Question 11

What does a joint tenancy entail?

Answer 11

1. each joint tenant is entitled to the whole property
2. individual joint tenants have no distinct right in land which they can sell / mortgage

Question 12

What does Edward Coke say about joint tenancy?

What year?

Answer 12

“joint tenant holds the whole and holds nothing, that is he holds the whole jointly and nothing separately”

1628

Question 13

What are the consequences of joint tenancy?

Answer 13

1. joint tenants cannot deal with their rights in the land independently
2. survivorship on death

Question 14

Which case supports the view that joint tenants cannot deal with their rights in the land independently?

Answer 14

• Hammersmith and Fulham LBC v Monk [1992]
• “a transfer to joint tenants operates so to make them […] one single owner”

Question 15

What happens if a joint tenant does deal with their right in the land?

Answer 15

the joint tenancy becomes a tenancy in common

Question 16

What happens in a joint tenancy when one dies?

what right is this? -> latin term?

Answer 16

• interest passes automatically to the surviving joint tenant
• it operates automatically on death
• it takes precedence over wills or intestacy rules

right of survivorship -> ius accrescendi

Question 17

What is a tenancy in common?

Answer 17

each co-own is entitled to an ‘undivided share’ in the land

Question 18

Which statute addresses tenancy in common?

Answer 18

• s.1(6) LPA 1925
• s.34(1) LPA 1925
• s.34(2) LPA 1925

Question 19

What do shares refer to?
do they have to be equal?

Answer 19

• the value of the property
• they can be equal or unequal

Question 20

What can tenants in common not own?

Answer 20

a part of the property individually
e.g. a room

Question 21

What right do tenants in common still have?

Answer 21

• the right to possess the entirety
• unity of possession is still central

Question 22

What are the consequences of a tenancy in common?

Answer 22

1. tenants in common can deal with their shares during their lifetimes (transfer, mortgage, gift)
2. no doctrine of survivorship applies (shares can pass by will or intestacy)

Question 23

Can one property be held differently?
Why is this important?

Answer 23

• Yes: at law vs in equity
• different implications
• co-own at law is far more restrictive than in equity

Question 24

What does co-ownership at law entail?

Answer 24

joint tenancy only

Question 25

Which statutes apply to joint tenancy?

Answer 25

1. s.1(6) LPA 1925 2. s.34(1) LPA 1925 3. s.34(2) LPA 1925 4. s.36(2) LPA 1925

Question 26

What does s.34(2) LPA 1925 state?

Answer 26

- that there can be no more than 4 co-own at law

Question 27

What is the benefit of viewing joint tenants as one single owner?

Answer 27

- makes conveyancing easier

Question 28

Is there a limit to the no. of co-owners for joint tenancy in equity?

Answer 28

- no - ensures flexibility

Question 29

What does co-ownership in equity entail?

Answer 29

- joint tenancy - tenacy in common

Question 30

What are the 2 features of co-ownership in equity?

Answer 30

- no limit on number of co-owners - always through a trust

Question 31

What are the 3 factors for determining if there's a co-ownership in equity?

Answer 31

- whether there is an express declaration of trust? - presence of absence of the four unities? - equitable presumptions?

Question 32

What happens if there is an express declaration of trust? which case states this? What is the one catch? ## Footnote co-ownership in equity

Answer 32

- an express declaration of trust as to the beneficial interests of the parties is conclusive of a co-own in equity - Goodman v Gallant (1986) - this won't apply if there is fraud / mistake / undue influence

Question 33

Which cases approved Goodman v Gallant [1986]?

Answer 33

- Stack v Dowden [2007] - Pankhania v Chandegra [2012]

Question 34

How do you make an express declaration? what statute helps? ## Footnote for co-ownership in equity

Answer 34

- e.g. Land Registry TR1 Form - need a declaration in a valid form -> s.53(1)(b) LPA 1925

Question 35

If there is an express declaration, what type of trust can there not be? Which statute says this?

Answer 35

- resulting trust - constructive trust - s.53(2) LPA 1925

Question 36

What are the four unities?

Answer 36

- unity of possession - unity of interest - unity of title - unity of time

Question 37

What do the four unities do?

Answer 37

- provide indication of whether 2 co-owners are holding interests in equity - NOT conclusive

Question 38

what is the difference between joint tenancy and tenancy in common with regards to the 4 unities?

Answer 38

- Joint tenancy -> requires all of the 4 unities - Tenancy in common -> must have unity of possession; could have any or all of them

Question 39

What is the unity of possession? Which statute confirms it?

Answer 39

- defining feature of co-ownership - no person is entitled to any part of the property -> no physical separation - right to occupy under s.12 TOLATA 1996 [but can be excluded under s.13 TOLATA - see trust of land]

Question 40

What is unity of interest?

Answer 40

each co-owner's interest must be the same 1. same extent -> same area covered 2. same nature -> a freehold or leasehold 3. same duration -> leasehold for same number of years

Question 41

What is unity of title?

Answer 41

- co-owners must derive their title from the same legally effective act / transaction / document - e.g. from same conveyancing document - [there is an exception to this with 'sham' documents in Antoniades v Villiers- see leases]

Question 42

What is unity of time?

Answer 42

-co-owners must all have acquired their interest at the same time

Question 43

What are the 2 types of equitable presumptions?

Answer 43

1. equity follows the law 2. equity prefers tenancy in common

Question 44

What are 2 features of the equitable presumptions?

Answer 44

- can work in a contradictory fashion - capable of being rebutted

Question 45

What does the presumption "equity follows the law" mean? where does it apply? is it strong? which cases are important for this? ## Footnote quotes

Answer 45

- there is a presumption of joint tenancy in equity - applies in the family home - strong but rebuttable in 'very unusual cases' - Stack v Dowden [2007] and Jones v Kernott [2011] ## Footnote - the burden is on the person trying to show that the equitable interests differ from the legal ones -> Stack v Dowden - these cases will be "very unusual" -> Stack v Dowden - a couple in an intimate relationship buying a house in which to live together with the help of a mortgage for which they are jointly liable, is a "strong indiciation" of a joint tenancy

Question 46

Why is "equity prefers tenancy in common" true?

Answer 46

- it is fairer to the parties - survivorship doesn't operate

Question 47

In what situations does the presumption that equity prefers tenancy in common apply? ## Footnote from which case

Answer 47

1. unequal contributions to the purchase price -> tenants get shares proportionate to their contributions -> doesn't apply in family home -> Stack 2. commercial / business partnerships / business tenants -> inconsistent with doctrine of survivorship so prefers tenancy in common 3. other circumstances in which equity may infer that the benficial interest is intended to be held by the grantees as tenants in common ## Footnote Malayan Credit Ltd v Jack Chia-MPH Ltd [1986]

Question 48

Which quote from Stack v Dowden highlights that a joint tenancy would be unhelpful in commercial settings?

Answer 48

"In many commercial contexts [...] it will be highly unlikely that the parties intend survivorship with its winner takes all effect"