L6: Co-ownership Flashcards

Question

What happens where legal title is conveyed to more than 4?

Answer 1

s34(2) - first 4 people named on the conveyance (of full age) who will be registered as legal co owners

Answer 2

Express declaration of trust Presence of 4 unities Application of various equitable presumptions

Answer 3

Mrs G and her husband bought a house conveyed into Mr G’s sole name Agreement that Mrs G was entitled to a 50% share in the beneficial interest Marriage broke down Later, the defendant Mr Gallant began living with Mrs G Mr Goodman conveyed freehold estate to Mrs G and Mr Gallant to hold the same unto the purchasers in fee simple as beneficial joint tenants Mrs G severed JT, seeking determination of their beneficial interests G claimed she was entitled to ¾ of the beneficial interest

Answer 4

Where a conveyance contains an express declaration of trust that makes clear the parties are to hold property as joint tenants, express statement is exhaustive & conclusive Severance = tenancy in common in equal shares Mrs G entitled to 50% of beneficial interest

Answer 5

Words used in conveyance may indicate nature of co ownership E.g. words of severance indicative of a tenancy in common E.g. to be divided, in equal shares

Answer 6

Suggests that the land is held under a joint tenancy If they are not present -> TiC

Answer 7

1) Given there can only be a joining tenancy at law, there will also be a joint tenancy at equity 2) Equity prefers a tenancy in common 3) Unequal contribution to purchase price presumes TIC 4) Mortgage loans from 2 or more mortgagees presumes mortgagees hold an interest in common 5) presumption that business partners hold land as tenants in common 6) Lease of business premises holds the presumption of a TIC

Answer 8

2 business took out a lease of office block Dispute arose JC applied for sale of the lease, seeking equal share of proceeds Issue: did they hold under JT or TIC Court: businesses had agreed unequal share of floor space & meticulous unequal division of liabilites as to rent & SC = TIC in equity in unequal shares

Answer 9

The process by which a joint tenant is converted into a tenant in common

Answer 10

Severance … is the process of separating off the share of a joint tenant, so that the concurrent ownership will continue but the right of survivorship will no longer apply. The parties [who have severed] will hold separate shares as tenants in common.

Answer 11

Avoid survivorship Access shares in co owned land

Answer 12

Must take place before the death of JT - cannot be effected by will Carr v Isard Burden of proof on severing party to prove effective severance Severance can’t be undone

Answer 13

By written notice s36(2) LPA 1925; Goodman; Harris; Kinch Joint tenant operating on own share by written notice; Re Draper’s Conveyance By mutual agreement; Burgess v Rawnsley By mutual course of dealing; Greenfield v Greenfield Forfeiture; Forfeiture Act 1982; Re K

Answer 14

s36(2) LPA 1925 JT can sever without consent of other co-owners JT must make desire to sever clear in a written notice JT must serve the notice on all other JT’s

Answer 15

No requirement in statute that the notice must contain signature of JT (Re Draper’s Conveyance) Written notice must express immediate intention to sever (Harris v Goddard)

Answer 16

I hereby give you notice of my desire to sever as from this day the joint tenancy and equity of and in [the co-owned land] now held by you and me as joint tenants both at law and in equity so that the said property shall henceforth belong to you and me in equal shares.

Answer 17

Husband & Wife equitable joint tenants of 2 homes They separated- husband’s divorce solicitor instructed to draw up a separation agreement referring to severance Draft agreement served on wife - in draft & not formally accepted by both sides Husband refused to serve notice fearing it would damage prospects for divorce negotiations Husband died before final separation agreement was reached Court held there was no clear, unequivocal, immediate intention to sever JT Wife entitled to 100% of equitable ownership under survivorship

Answer 18

Husband & wife co owners of matrimonial home Held property as JT at law and in equity Marriage broke down- they divorced Wife issued summons that the house be sold & proceeds be divided equally between them Court made an order for sale, husband died prior to the sale

Answer 19

Had severance taken place? Yes = wife entitled to 50% share of sale No = wife entitled to entire beneficial ownership under severance

Answer 20

Equitable joint tenancy had been severed when wife issued her summons to court Amounted to a written notice of severance clearly evincing an intention that she wished the property to be sold & proceeds distributed in half JT was severed

Answer 21

Married couple JT Marriage broke down- wife petitioned for divorce Wife sought order for the home as may be just 3 days before court hearing, husband died in a car crash

Answer 22

Did the divorce petition constitute an effective notice of severance? Or was there no severance -> operation of survivorship to the benefit of the wife?

Answer 23

Divorce petition failed to demonstrate immediate intention to sever JT Wife entitled to 100% of ownership

Answer 24

HvG lacked immediacy

Answer 25

S196 LPA 1925 When it is left at the JT’s last known address or place of business Where delivery is made by post, it is served when it would in the ordinary court be delivered

Answer 26

No- mere delivery is sufficient

Answer 27

Mr and Mrs J married & co owners of a matrimonial home at law and in equity Marriage broke down, Mrs J (terminally ill) petitioned for divorce Mrs J sent written notice of severance by ordinary first class post Mr J suffered a heart attack and underwent a hospital stay Mr J had not seen the notice, but it had been delivered Mrs J likely to outlive Mr J- she did not wish to sever JT She destroyed the letter, Mr J died in hospital

Answer 28

Written notice had been served Subsequent destruction had no bearing on severance Tenancy had been severed If Mrs J had revoked her notice via communication to Mr J before the letter had been delivered -> no severance

Answer 29

Under the Hensman Catalogue Where a JT carries out an act demonstrating an intention that her interest in the co owned land constitutes a share => severance (acting on one’s own share)

Answer 30

JT transfers their interest to a third party = alienation May be via sale or by gift Equity treats as done that which ought to be done - specifically enforceable contract for sale/transfer of JT’s interest = severance Caldwell v Fellowes

Answer 31

One joint tenant may wish to buy out another JT JT purchasing the additional ‘share’ becomes a tenant in common to the newly acquired interest but remains a JT as to their original interest

Answer 32

Bedson- a mortgage or charge of an equitable joint tenant’s interest operates as an act of severance Specifically enforceable contract for a mortgage = act of severance

Answer 33

No single co owner can grant a mortgage over the whole property- requires agreement of all legal owners Disposition will not be valid if they attempt to do so Entry made in the register will be corrected s63(1) LPA 1925 Actions of a sole equitable JT will sever their own interest even where they have committed fraud

Answer 34

Married couple were co owners = retirement home They were equitable JT’s Relationship broke down- husband forged signature on a legal charge for security for a loan Actions of husband = disposition of husband’s own share and a sufficient act of alienation to sever beneficial joint tenancy, converting husband and wife into TIC Disposition created an equitable charge over husband’s share enforceable by the mortgage lender

Answer 35

No severance- their coming together impacts legal estate only, not the equitable position C v S

Answer 36

Nielson-Jones v Fedden- unilateral declaration is insufficient for effective severance

Answer 37

Conveyance declared they held JT ine equity Mr H intended for them to be married Mrs R had no desire to marry, had intended to live upstairs, Mr H downstairs Oral agreement was reached that Mrs R would see her interest to H for £750 Mr H’s solicitor wrote to Mrs R to confirm, on reflection she adjusted the price upwards of £1000 Mr H took no further action 3 years later, H died Burgess (H’s daughter), argued severance had taken place- survivorship did not operate, that estate was entitled to 50% ownership Court: agreement for the sale of her interest = severance Whilst s40 LPA 1925 states a contract for the sale of an interest in land must be in writing, the absence of such was immaterial Agreement = common intention to sever

Answer 38

Operates only where all equitable JT’s agree to sever

Answer 39

Mr H and Mrs R bought a house in joint names where Mr H lived Conveyance declared they held IT in equity Mr H intended for them to be married Mrs R had no desire to marry, had intended to live upstairs, Mr H downstairs Oral agreement was reached that Mrs R would see her interest to H for £750 Mr H’s solicitor wrote to Mrs R to confirm, on reflection she adjusted the price upwards of £1000 Mr H took no further action 3 years later, H died Burgess (H’s daughter), argued severance had taken place- survivorship did not operate, that estate was entitled to 50% ownership Court: agreement for the sale of her interest = severance Whilst s40 LPA 1925 states a contract for the sale of an interest in land must be in writing, the absence of such was immaterial Agreement = common intention to sever

Answer 40

When all JT’s act in a manner demonstrating that they regard themselves entitled to specific shares -> severance Williams v Hensman A consensus between the joint tenants, disclosed by a pattern of dealings with the co-owned property, which effectively excludes the future operation of survivorship.

Answer 41

Case law suggestive that it is challenging for inconclusive negotiations to amount to a mutual course of dealing Ongoing or incomplete negotiations will only give rise to severance where the agreement, had it been reached, would have operated to sever JT Hunter v Babbage

Answer 42

No Making of mutual wills suffices as a mutual course of sealing- where all JT’s execute mutual wills Estate of Heys

Answer 43

Greenfield v Greenfield - physical division does not necessarily = severance 2 brothers purchased a house as JT at law and in equity Lived with their mother who died Brothers were both married, so converted the house into maisonettes One brother lived in upper half, the other in the lower No notice of severance served, no evidence from the brothers that they considered the conversion to impact the JT For wife of the deceased brother to be entitled to 50%, there had to be severance of JT Held: physical division, conversion and separate occupation not inconsistent with the continuation of the JT No severance had taken place- interest passed onto surviving brother who was wholly entitled to the land Onus on the wife to establish severance Severance will only amount to a mutual course of dealing if there is evidence of a common mutual intention

Answer 44

Where one JT is responsible for unlawfully killing another JT, s1 Forfeiture Act 1832 prevents JT responsible from benefiting under the doctrine of survivorship The unlawful killing severs the JT

Answer 45

Where one JT murders another JT Cleaver v Mutual Reserve Fund Life Association Applies to cases of manslaughter Re Estate of Hall Gray v Barr- forfeiture operates where a JT is guilty of deliberate, intentional and unlawful violence or threats of violence Has been held to operate in cases of assisted suicide RE Ninian On the balance of probabilities, JT was responsible for the killing is all that is required

Answer 46

s2(1) - court can offer relief if they are satisfied having regard to the conduct of the offender, that the justice of the case requires the rule to be so modified S5- relief unavailable for convicted murder

Answer 47

Re k Relief granted where one JT killed the sole JT (her husband)- wife had suffered prolonged and serious DV and had only intended to threaten her husband with a gun rather than fire it Dunbar v Plant Relief granted in a failed suicide pact resulting in the death of only one of the two joint tenants

Answer 48

Does the forfeiture rule in s1 1982 apply? Should relief be granted? If so, should the forfeiture rule be disapplied in part or in total?

Answer 49

Unity of co owned land in 1 JT Under the doctrine of survivorship, where land comes into sole ownership of a single JT, trust of land is terminated, entire estate passed onto surviving JT Purchase of the legal estate taking free of the trust of land Where legal estate is held on trust & sold to a third party who takes free of the trust of land via overreaching Proceeds of sales are paid to two or more trustees ss.2 & 27 LPA 1925 Purchaser overreaches equitable interests Co owners interests converted into proceeds of the sale Partition of co owned land Physical division of land and transfer of each plot destroys unity of possession s7 TOLATA - consent of beneficiaries required before partition There can only be partition if B’s are of full age B’s are absolutely entitled to the land B’s hold co owned land as tenants in common

Answer 50

Couple who had bought a home had split, the woman remained in the property with 3 children Court refused order of sale as the property had been purchased to provide a home for the family children for the indefinite future

Answer 51

Must take effect as a trust of land, whether via express or implied creation by way of resulting or constructive trust

Answer 52

S6 TOLATA (1) have all the powers of an absolute owner for the purpose of exercising their functions as trustees Must act with regard to the rights of B, in a manner which does not contravene rules at law or equity & subject to a duty of care when exercising their powers (3) given the power to acquire freehold/leasehold either as an investment, occupation by B or any other reason in accordance with s8 Trustee Act 2000

Answer 53

s8(1) TOLATA Express creation of a trust -> restriction of ss. 6 & 7 TOLATA s8(2) TOLATA Disposition creating a trust of land can include a requirement that consent of B’s be obtained before ss.6 & 7 powers can be exercised S11 TOLATA Trustees under a duty to consult B’s when exercising any of their functions relating to land, as far as is practicable and consistent with the general interest of the trust, give effect to B’s wishes

Answer 54

The right to be consulted; the right to occupy co owned land s3 TOLATA

Answer 55

B enjoys the right to be consulted by T exercising any function in relation to co owned land Right only applies to B’s of full age entitled to possession of land T only has to consult B so far as is practicable Where B is consulted, T must give effect so far as is consistent with the general interest of the trust Where B disagrees, T can give effect to the wishes of the majority of B’s Duty to consult can be excluded by the terms of an express trust Duty to consult inapplicable to trusts existing at the time 1996 Act came into force

Answer 56

Arises where 2 requirements are satisfied s12(1) - purpose of the trust was that the land was intended for the occupation of B (where the terms make it clear land was held purely as an investment or imposes duty on T to sell land, precludes occupation) s12(2) - must be shown that land is suitable for occupation by B

Answer 57

‘suitability’ for this purpose must involve a consideration not only of the general nature and physical characteristics of the particular property but also a consideration of the personal characteristics, circumstances and requirements of the particular beneficiary. E.g. farm land unsuitable for a non farmer B

Answer 58

s13(1) Where 2 or more B’s are entitled to occupy co owned land, T is permitted to restrict or exclude the right to occupy of any one or more B’s

Answer 59

In restricting the right to occupy, T must neither unreasonably exclude any B’s entitlement to occupy land nor exclude such entitlement to an unreasonable extent In exercising the power to exclude or restrict, T must have regard to the intentions of the person who created the trust, purpose and circumstances of B T can impose reasonable conditions of B’s in relation to their occupation and conditions may include paying outgoings or expenses in respect of the land / assuming obligations in relation to activities on land Where B’s right to occupy is excluded/restricted, conditions may be imposed on other B’s including paying compensation to the excluded T’s powers cannot be used to exclude any occupants or exercised in a manner likely to result in any such person ceasing to occupy the land

Answer 60

Doctors R & L entered into a business partnership They purchased a property in joint names at law and equity Existing building was demolished- surgery from which both doctors practiced was constructed Dispute -> partnership ending R sough court order for winding up of partnership and sought to purchase the entire property L counterclaimed seeking that property be partitioned under TOLATA or doctors exercise s13 powers to restrict the other’s right to occupation Court: order under s13 directing that the property be divided into 2 units with each enjoying exclusive occupation of one unit

Answer 61

Court with jurisdiction can hear disputes involving co owned land

Answer 62

Anyone with an interest in land subject to a trust

Answer 63

Court cannot appoint or remove trustees Court cannot order T to exercise a power which they do not have

Answer 64

B the sole registered owner of a 4 bed house in london & lived with her 2 eldest son Sons both made financial contributions to the purchase price of the house and subsequent mortgage instalments Sons married - one son decided to leave Mrs B decided to make a declaration of trust under which each son was declared to be an equitable tenant in common with ⅓ share in the property Dispute arose as to the sale of the property Judge- had no jurisdiction to order one of the sons to sell the property Court made an order directing trustees to sell the trust property on terms that the brother seeking sale would be given first opportunity to buy the property at a price determined by the court

Answer 65

The intentions of those who created the trust 15(a) Only identifiable intentions at the time or before the trust was created can be taken into account by the court May be express, oral or by written evidence by the parties or capable of inference by the court Re Buchanan-Wollaston Sea front promenade was conveyed to 4 individuals as JT Clear in the deed the conveyance was made to avoid depreciation in market value of the parties’ adjacent properties Land could only be dealt with by way of majority vote Court held that the purpose of the trust was obvious- no sale should be ordered that would work against the clear and unequivocal expression in the deed

Answer 66

The purpose for which the land subject to the trust is being held Court will consider whether the initial purpose has been fulfilled, exhausted or is no longer capable of being achieved White Property purchased by a couple who had not intention at the outset that it was to be a family home Couple subsequently had children- court found no agreement that the purpose for the property had changed

Answer 67

Husband and wife purchased a lease with 10 years left to run as JT Marriage broke down - pair divorced Wife left the matrimonial home, husband remained in possession of the property Wife requested a sale of the lease, husband refused Wife applied to court s30 LPA 1925 seeking sale Court: ordered property to be sold - when the marriage failed, the purpose dissolved, was no longer alive

Answer 68

The welfare of any minor occupying or who might reasonably occupy the land as home Age of the minor will be a relevant factor

Answer 69

Husband & wife co owners of a family home with their 4 children Marriage broke down- couple divorced Wife remained in the house with the children, husband moved out When the oldest child was 12, husband decided he wanted to sell the house Court refused to order the sale

Answer 70

Presumption in favour of sale Re Mayo

Answer 71

s15(1)(d) TOLATA- interests of any secured creditor of B to be taken into account by the court

Answer 72

Pre TOLATA Creditor’s interests trumped those of the B and their children Lloyds bank v Byrne and Byrne Husband and wife co owners of a matrimonial home Husband secured against the property a debt of 25k relating to his co Bank obtained a charging order against the property When the debt was not paid, bank sought am order for sale of property under s30 LPA Court: No distinction between a trustee in bankruptcy & the bank sale would be ordered in the absence of extraordinary circumstances

Answer 73

House purchased as a family home in which Mr Fox, Mrs Shaire and Mrs S’s son were to live Mr F & Mrs S held the property in joint names Without Mrs S’ knowledge, Mr F twice mortgaged the house by forging her signature F fell into arrears, subsequently died Mortgage lenders (Morgage Corp) made a s14 application for possession and sale of the property Court: s15 was only one of the 4 factors to be considered by the court- interests of the creditors alone were not decisive Considering the other s15 factors, court decided that Mrs S would not be an enormous hardship, mortgage was converted into a loan of 25% of property value Debt was paid, Mrs S was entitled to entire beneficial ownership of the property

Answer 74

Property acquired to provide family home for husband, wife and son Husband, without wife’s knowledge, mortgaged the property Husband fell into arrears Marriage broke down - bank sought possession and sale of the property At the time of the sale application, the son was almost 18 On account of the facts( initial purpose to provide a family home rejected, sons age immaterial, debt owed increased daily) court was persuaded to order sale of the property

Answer 75

Mr and Mrs Edwards co-owned a property in which they lived as their matrimonial home Mr E forged wifes signature to secure a mortgage against the property Marriage broke down- E absconded (could not be located) Mrs E remaining living in the property with the children Bank brought an application for sale of the property Court: found that immediate sale would be unacceptably severe to the wife and hcildren - purpose prevailed Order for sale postponed until youngest of Mrs E’s children turned 18

Answer 76

In Bell, the debt was spiralling, at the time of the application there was insufficient value to cover the debt (court sympathised for the creditor)

Answer 77

Insolvency Act 1986

Answer 78

When the co owner is actually insolvent, not merely heavily indebted

Answer 79

S306 IA - estate is vested in a trustee in bankruptcy T’s job to realise co-owners property to cover as far as possible, the debt owed to the co owners creditors

Answer 80

S14 TOLATA can be raised to bring an action for sale of the land

Answer 81

s335A IA Timing- distinction between aplications made leass than 12 months after vesting of bankrupt’s estate in the trustee in bankruptcy and those made more than 12 months after vesting

Answer 82

Courts will consider factors listed in s.335A(2) Court will balance competing interests of: bankrupt’s creditors against the conduct of any spouse, civil parner, former spouse/CP contributing to the bankruptcy; needs of any spouse, children & all other circumsntances other than the needs of the bankrupt

Answer 83

ss35a(2)(c) requires the court to consider all circumstances other than the needs of the creditor

Answer 84

s335a(3) court assumes the interests of bankrupt’s creditors outweigh all other considerations unless exceptional circumstances apply

Answer 85

Requires something more than the melancholy consequences of debt Re Ciltro Re Bremner- circumstances are only exceptional where they lie wholly outside the range of problems commonly associated with bankruptcy

Answer 86

Bankrupt’s daughter with mental age of 8-9 yr old, mobility problems and OCD (Grant v Baker) sale postponed for 12 months B’s husband with autoimmune condition affecting msucles, requiring ventilator and zimmer frame (Pickard v Constable) sale postponed for 12 months B with various chronic conditions relating to stroke and diabetes (Everitt v Budhram) Sale postponed for 12 months

Answer 87

via the doctrine of overreaching

Answer 88

Purchaser need not concern herself with the trust - acquires land entirely free of equitable interests

Answer 89

Where co owned land is held by at least 2 JT, overreaching is satsified provided the purchaser deals with at least two of these legal owners

Answer 90

Governed by doctrine of notice - Kingsnorth Finance v Tizard Registered land- determined on the basis of sch 3, para 2 LRA 2002 if the interest holder satisfies the requirements of an overriding interest

Answer 91

S16 TOLATA If T convey co owned land without having regard to the rights of or without consulting b, under s 16 the purchaser will not be affected by these breaches

Answer 92

S26 LRA 2002 Any limitation on the powers of registered co owners are intended to be contained in a restriction entered on the register- where any limitations have not been entered, purchaser will not be affected

L6: Co-ownership Flashcards

(116 cards)