Differences between joint tenants and tenants in common in law and in equity (Co-ownership and Trusts)- FS Flashcards
(12 cards)
What is a joint tenancy in land law?
A form of co-ownership where each co-owner owns the whole of the property. Upon death, their interest automatically passes to the surviving joint tenant through the right of survivorship.
What is a tenancy in common?
A form of co-ownership where each co-owner has a distinct share in the property, which passes to their estate upon death rather than to the other co-owner.
What is the Right of Survivorship
The principle that, under a joint tenancy, a deceased co-owner’s interest automatically transfers to the surviving joint tenant, regardless of the deceased’s will.
How do legal and beneficial ownership differ in co-ownership?
Legal ownership is recorded on the title register. Beneficial ownership refers to the equitable interest and can differ based on express agreement, intention, or contributions.
What is the default position on beneficial interest where co-owners are joint legal owners?
The default assumption is that they are also joint tenants in equity unless there is evidence to show otherwise.
How to Create a Tenancy in Common
Ways to establish a tenancy in common:
- Express declaration of trust.
- Severance of a joint tenancy.
- Lack of one or more of the four unities.
- Evidence of unequal financial contributions or differing intentions.
The Four Unities Required for Joint Tenancy?
To create or maintain a joint tenancy, all four of these must be present:
- Unity of Time – Interests must be acquired at the same time.
- Unity of Possession – Each co-owner must have equal right to possess the whole property.
- Unity of Interest – The nature and extent of each co-owner’s interest must be the same.
- Unity of Title – All interests must derive from the same legal document.
What happens if one of the four unities is missing?
The co-ownership will be treated as a tenancy in common.
What is severance in the context of joint tenancy?
The process by which a joint tenancy is converted into a tenancy in common, thereby eliminating the right of survivorship.
What can indicate an intention to sever a joint tenancy?
Conduct such as unequal financial contributions, separate financial arrangements, or instructions in a will can indicate intent to hold as tenants in common.
Indicators of Different Beneficial Interests
Factors suggesting unequal beneficial ownership:
- Unequal contributions to the purchase price.
- Payment of mortgage or bills in unequal shares.
- Separate finances and no pooling of resources.
- Express declarations or written agreements.
How do legal outcomes differ upon death between the two types of co-ownership?
In joint tenancy, the deceased’s share passes to the survivor. In tenancy in common, the deceased’s share passes into their estate.
