Co-ownership And Trusts

Question 1

What is co-ownership?

Answer 1

Where more than one person owns land at the same time.

Question 2

What is a trust of land?

Answer 2

This is when there are concurrent sharing of co-ownership in a property of land.

S 1 of TOLATA

Question 3

When will a trust of land arise?

Answer 3

Landowner intentionally sets up trust of land, by transferring title to land to trustees for benefit of others (express trust)

A person acquires an interest in land owned by another due to their conduct (implied trust)

Land is acquired by more than one owner jointly (co-ownership)

Question 4

What is the legal estate in a trust of land?

Answer 4

A legal estate is incapable of submitting or being created in an undivided share, therefore

Must be held in joint tenancy only

CANNOT be severed

Question 5

Who can be a trustee of land?

Answer 5

Anyone over 18.

If minor and adult, the land is vested in the adult, in trust for the minor.

4 trustees MAX

Question 6

What are the powers of trustees of land?

Answer 6

Have power of absolute owner, owner to sell or mortgage the land, purchase etc

Trustees powers are limited by duty o CONSUT the beneficiaires of full age and who have an interest

Must comply with wishes of beneficiaries.

Question 7

What are the 2 forms of co-ownership?

Answer 7

Joint tenancy

Tenant in common

Question 8

What is joint tenancy in equitable interest?

Answer 8

Jointly entitled to whole o property.

Can sever joint tenancy in equity and convert to TIC

Question 9

What is the right of survivorship?

Answer 9

On death of joint tenant, the interest automatically and immediately passes to the surviving joint tenant. It does NOT pass under the will or intestacy.

Question 10

What is tenancy in common?

Answer 10

Each owner is regarded as having a distinct share in the land, although the land in question had not been physically divided up.

Can be equal or unequal.

Question 11

What are the 4 tests to work out if an interest is joint tenancy or TIC?

Answer 11

1: are al 4 unities present?

2: does the deed transferring the land to co-owners contain an express declaration?

3: does the deed transferring the land to co-owners contain words of severance?

4: does equity PRESUME TIC?

Question 12

What are the 4 unities?

Answer 12

Test for joint tenancy:

Unity of possession - each co-owner has the right to possession of all the land.

Unity of interest - each co-owner must have identical rights in the land. If unequal, there is NO unity of interest.

Unity of title - each co-owner I must acquire their interest from the SAME DOCUMENT

Unity of time - co-owners recieve their interests at the SAME TIME

Question 13

What does the second test for joint tenancy ask>?

Answer 13

Does the deed transferring the land to co-owners contain an EXPRESS declaration?

If it does, then you abide by that.

Question 14

What is the third test for joint tenancy?

Answer 14

Does the deed transferring the land contain words of severance?

Words that are NOT severance:

Equally between them
In equal shares
Between A and B
Half ago A and half to B

Question 15

Does equity PRESUME a tenancy in common?

Answer 15

There is a presumption that o owners wll be JOINT TENANTS on the basis that equity follows the law

The legal estate is always joint tenancy, and therefore PRESUMED that the equitable interest is also

Question 16

How can he presumption of joint tenancy be rebutted?

Answer 16

If it is for business use

Unequal contributions to the purchase price

Post-acquisition money management (one has given greater share of finance)

Question 17

What is severance?

Answer 17

Method by which a joint tenancy in equity can be converted into TIC.

Question 18

What are the 2 ways of severance?

Answer 18

Formal severance by written notice

Informal severance

Question 19

How can a joint tenant sever their share by written notice?

Answer 19

By giving written ntice to other co-owners, stating their intention to sever, ether expressly or impliedly.

NO specific form, does NOT need to be signed.

Unilateral act, does not need consent from others.

Question 20

What are the 2 requirements for severance by written notice?

Answer 20

Use appropriate wording - mst express desire to send joint tenancy IMMEDIATELY.

Be recieved by ALL other joint tenants, or DEEMED to be recieved.

Question 21

What are the postal rules when it comes to the delivery of a severance?

Answer 21

If posted, reliance can be deemed.

Registered post: if notice is sent by registered or recorded letter, is is served if letter is not returned.
If a joint tenant choose to send notice, can rely on this presumption.

Ordinary post: any notice is sufficiently service if it is left at the LAST KNOWN PLACE of abode or business in UK of the person to be served.

Question 22

What are the methods of informal severance?

Answer 22

Acts operating on the joint tenants share

Mutual agreement

Course of dealing

Bankruptcy

Homicide

Post-acquisition money management

Question 23

What are acts operating on the joint tenant share that result in severance?

Answer 23

Unilateral act.

Where joint tenant DISPOSES of equitable interest by SALE, GIFT, LEASE or MORTGAGE.

Must be in writing and signed.

Question 24

How can informal severance be done by mutual agreement?

Answer 24

Requires joint tenants to ACT TOGETHER, to sever it, and must be supported by valuable consideration.

Oral agreement will suffice and agreement does NOT need eto be carried through to performance.

Question 25

How can severance be done by mutual conduct/course of dealings?

Answer 25

Joint tenants do not have to agree to do something to sever, but must show their THEIR CONDUCT, that they clearly regard themselves as owning distinct shares.
Parties must behave in a way that shows they assume they are TIC over a period of time.

Question 26

How is informal severance done by bankruptcy?

Answer 26

Involuntary alienation.

Involuntary assignment of interest to bankruptcy.

Question 27

What is the effect of severance?

Answer 27

Becomes TIC for that person who severed. For the others, still joint tenants.

Their share is in proportion to the numbers of joint tenants. Individual contributions is IRRELEVANT

Question 28

What is a resulting trust in land?

Answer 28

Wen a person who does NOT hold legal title, makes a contribution to the purchase price of the prperty.

No evidence that contribution was intended as a gift or a loan

And contribution must be al or part of purchase price, at DATE of acquisition.

Question 29

What are other equitable interest on a piece of land?

Answer 29

Constructive trust

Question 30

What must a contructive trust have to be a equitable interest on land?

Answer 30

Agreement and detrimental reliance,

Conduct and direct fianncial contribution

Question 31

What is s 14 of TOLATA?

Answer 31

A trustee or any one who has interest in property, can make an application for an order of s 14.

This is if they want to sell the property and others want to retain it.

Court has discretion to make an order:
- relating to exercise by trustees or,
- declaring nature and extend of persons interest

Question 32

What are the 4 categories of applications under s 14 of TOLATA?

Answer 32

Disputes regarding size of co-ownership interests

Disputes regarding to occupation of trust land

Authorising transactions withotu consent of all trustees

Disputes as to whether co-owner land should be sold

Question 33

What is s 15 of TOLATA?

Answer 33

Set out the factors that the court should consider in exercising its owners under s 14.

Question 34

What are the 4 factors in s 125 ot TOLATA?

Answer 34

Intention of the persons who created the trust

Purpose for which the property subject to trust is held

Welfare of any minor who occupies or might reasonably be expected to occupy, as a home

Interest of any secured creditor of any beneficiary