Finding & Co-Ownership

Question 1

Armory v. Delamirie (1722)

Answer 1

The finder of an object above the surface can maintain possession against all but the true owner

Question 2

Webb v. Ireland [1988]

Answer 2

Objects of important for national heritage and knowledge belong to the people of Ireland and are not the exclusive property of the finders (in the event that there is no known owner).

Question 3

Co-Ownership

Answer 3

When property is owned by two or more people concurrently. Dictates the rights and obligations of co-owners.

Question 4

Types of co-ownership

Answer 4

4 types:
- Joint tenancy
- Tenancy in common
- Tenancy by entireties
- Coparcenary

Question 5

Rights of co-owners

Answer 5

1. Alienation (e.g. renting, selling)
   - In joint tenancy: post-LCLRA consent of other joint tenants is required
   - TIC: no consent required
2. Possession (the rights to use and enjoy the land)
3. Apply for court orders under s31 LCLRA 2009 (e.g. for partition, sale)

Question 6

Primary characteristic of joint tenancy - The right of survivorship

Answer 6

Once a joint tenant dies, her interest in the property is extinguished. There is no interest that can be passed on by succession (s4 Succession Act 1965). This means that the number of joint tenants who own a property is always decreasing until there is only one joint tenant who is then entitled to the sole ownership of the property

Question 7

Exceptions to the right of survivorship

Answer 7

Unlawful killing of one joint tenant by another:
- Succession Act, s120(1) LCLRA 2009 prohibits beneficiaries from inheriting from a deceased person’s estate, where the beneficiary unlawfully killed the deceased (unworthiness to succeed).
- BUT: property held in a joint tenancy does not form part of the estate of a deceased person because of the right of survivorship, thus, the rule in s. 120 Succession Act 1965 does not apply to joint tenancy…

Question 8

Four Unities

Answer 8

a. Unity of possession: All joint tenants are entitled to possession of all of the property
b. Unity of interest: The interests of all co-owners must be the same in terms of their nature, extent and duration
c. Unity of time: The rights of each joint tenant must have vested at the same time (except in the case of creation by a will or conveyance to uses)
d. Unity of title: Joint tenants must have acquired their interest by the same document or by a set of documents that form part of the same transaction

Question 9

Primary characteristics of tenancy in common

Answer 9

Here, all co-owners are entitled to an (undivided) share of ownership
- No physical division of the property
- All co-owners are entitled to use all of the physical land in question (unity of possession is required)
- Shares of ownership reflect the contributions towards the purchase of the property

Each co-owner’s interest can pass to successors by will or according to the rules of intestacy

Question 10

Joint tenancy – Creation

Answer 10

In law:
- Common law will presume that co-owned property is held in joint tenancy

In equity:
- Equity can intervene to recognize a TIC in equity where there is a joint tenancy in law
- Thus, if co-owners wish to ensure the existence of a joint tenancy in law and in equity, this should be expressly stated in the deed.

Question 11

Tenancy in common – Creation

Answer 11

In equity:
- Equity prefers co-owned property is held in TIC

In law:
A TIC will exist where there is something in the deed to indicate that the parties intended the presumption of a joint tenancy not to operate. This is done by:
1. Ensuring that one of the four unities is not present
2. Using ‘words of severance’ in the disposition that indicate that ownership rights are to be severed into shares of control

Question 12

Severance

Answer 12

This is where a JT is converted to a TIC

A destruction of one of the four unities will result in severance (unity of interest and title)

Destruction of the unity of possession will result in the termination of co-ownership (= partition)

Severance can occur in law and in equity

Question 13

When severance occurs ?

Answer 13

In law:

Severance in law occurs by way of:
1. Acquisition of an additional interest
2. Alienation by one joint tenant to a third party
3. Act of a third party exercising statutory powers

All of these result in the destruction of the unity of title or the unity of interest

In equity:

Severance in equity occurs:
1. When it furthers the mutual intention of the parties
2. In the course of dealings
3. Contract by one joint tenant

Note : s30 LCLRA 2009 Consent of other joint tenants is required where one joint tenant wishes to alienate her interest in the land + s30 registration of a judgement mortgage against the estate or interest in land does not sever the joint tenancy

Question 14

Ways of severance in equity - way of mutual agreement

Answer 14

1. By way of mutual agreement

Here, the court looks to the mutual intentions of the joint tenants to see if they intended to server the joint tenancy
Intentions must be mutual and expressed openly

Burgess v Rawnsley [1975] -> There was a severance in equity on account of the mutual intention of the parties, even though the intention had not been formalised

Question 15

Ways of severance in equity - course of dealings

Answer 15

A number of scenarios will result in a severance in equity
E.g. negotiations intended to sever the joint tenancy that are not formalised (as in Burgess v Rawnsley [1975])

s30(4) LCLRA 2009: ‘Nothing in this section affects the jurisdiction of the court to find that all the joint tenants by mutual agreement or by their conduct have severed the joint tenancy in equity’.
- Conduct of joint tenants can also result in severance

Question 16

Ways of severance in equity - contract by one joint tenant

Answer 16

When an individual alienates her own share, but the transaction is not completed, the rule in Tempany v Hynes (1976) applies
- This rule dictates that where a contract is entered into, but not completed and the purchaser has paid monies, the purchaser will acquire an interest in equity (the interest normally reflects the amount paid)
- Principle is reflected in s52 (1) LCLRA. However, now the purchaser is entitled to the entire beneficial interest in the property (i.e. the interest no longer reflects the amount of money paid)

Question 17

Termination of co-ownership

Answer 17

Co-ownership ends where:
1. The number of co-owners is reduced to one (vesting in a sole owner)
2. The unity of possession is destroyed (because this is required for joint tenancy and TIC)
- This occurs by partition or sale

Question 18

Vesting in a Sole Owner

Answer 18

Co-ownership cannot exist if there is only one owner

In respect of joint tenancy:
- This occurs under the right of survivorship
- One joint tenant may also buy out the other joint tenants (normally done by a release, each release severs that share from the joint tenancy until one owner is left)
- Prior written consent required under s30 LCLRA

In respect of TIC:
- One co-owner will buy out the others or otherwise acquire the interests of the other co-owners

Question 19

Partition or Sale

Answer 19

‘Partition is the physical division of property between co-owners in a manner that shatters the unity of possession and therefore makes co-ownership impossible’ (deLondras)

Partition or sale can be carried out:
1. Voluntarily by deed
2. By court order under s31LCLRA (s31(2)(a) concerns partition and s. 31(2)(c) concerns sale)
3. s31(1): ‘Any person having an estate or interest in land which is co-owned whether at law or in equity may apply to the court for an order under this section’.
4. ‘Any person’ includes mortgagees, other secured creditors, judgment mortgagees and trustees’ (s31(4)(a))

LCLRA makes it clear that the courts have discretion as to whether they will issue an order for sale or partition under s31.

Question 20

What factors for granting an order for sale or partition s31 ?

Answer 20

Muintir Skibbereen Credit Union v Hamilton and Crowley [2016]
The noted that the ‘starting points’ as to how discretion is to be exercised are:
1. Constitutional considerations
- Court must balance the competing constitutional rights (of the judgment mortgagees and the spouses)
2. Whether the lender is an unsecured creditor
- Non-debtor spouse not consulted- Although, the FHPA 1976 does not strictly apply to JMs, it represents a fundamental policy choice of the Oireachtas that reflects the constitutional values (inviolability of the dwelling place and protection of family life)
3. The circumstances of the family
- Cited Denham J in First National Building Society v Ring Drillfix Ltd v Savage [2009] IEHC 540 where Denham refused to grant an order for the sale of the family home because if the house was sold, the other spouse would have insufficient resources to purchase another home.
- Cited the factors that must be taken into account in issuing an order to dispense with consent of non-owning spouse under s.4 FHPA 1976 (the needs and resources of the spouses and dependents, availability of alternative accommodation.)