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FLK 2: Land Law > Topic 6 - Co-ownership > Flashcards

Topic 6 - Co-ownership Flashcards

(81 cards)

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1
Q

What is concurrent co-ownership?

A

Concurrent co-ownership arises where two or more people own the same estate in the same piece of land at the same time.

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2
Q

What does TOLATA 1996 govern?

A

The Trusts of Land and Appointment of Trustees Act 1996 governs the law of co-ownership.

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3
Q

What happens when land is owned jointly under TOLATA 1996?

A

A trust of land is imposed, separating the legal title held by trustees from the equitable title held by beneficiaries.

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4
Q

Who holds the legal title in a trust of land?

A

The legal title is held by the trustees.

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5
Q

Who holds the equitable title in a trust of land?

A

The equitable title is held by the beneficiaries.

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6
Q

Define express trusts.

A

Express trusts are trusts of land created expressly through formalities, evidenced in writing and signed by the declarants.

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7
Q

What is the significance of LPA 1925, s 53(1)(b)?

A

It requires that a declaration of trust respecting any land must be manifested and proved by writing signed by the person able to declare such trust.

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8
Q

What is an implied trust?

A

Implied trusts arise informally without writing, and can be resulting or constructive trusts.

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9
Q

What is a joint tenancy?

A

In a joint tenancy, all co-owners are deemed a single entity and own the whole property collectively.

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10
Q

What is a tenancy in common?

A

In a tenancy in common, each co-owner has a distinct but undivided share in the land.

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11
Q

What are the four unities of title necessary for a joint tenancy?

A

The four unities are:
* Unity of possession
* Unity of interest
* Unity of title
* Unity of time

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12
Q

What is the right of survivorship?

A

The right of survivorship applies in joint tenancies, allowing the interest of a deceased joint tenant to accrue to the surviving joint tenants.

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13
Q

True or False: Survivorship applies to tenancies in common.

A

False.

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14
Q

What is the legal title in co-ownership?

A

The legal title is the public face of co-ownership, held by trustees registered at the Land Registry.

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15
Q

What is the maximum number of legal owners according to Trustee Act 1925, s 34(2)?

A

The maximum number of legal owners is four.

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16
Q

What is the ‘curtain principle’ in land registration?

A

The names of equitable owners do not appear on the registers of title, keeping equitable interests private.

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17
Q

Define equitable joint tenancy.

A

An equitable joint tenancy can be severed by any joint tenant to hold a separate share as a tenant in common.

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18
Q

What happens when there is no specific wording for equitable title?

A

A rebuttable presumption of a tenancy in common arises.

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19
Q

What is the difference between express and implied trusts?

A

Express trusts are created with formalities, while implied trusts arise informally without writing.

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20
Q

Fill in the blank: A resulting trust may be implied if property is bought in A’s name but ______ makes a financial contribution.

A

[B]

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21
Q

What is a common intention constructive trust?

A

A constructive trust imposed where it would be unconscionable for the legal owner to deny the interest of another person.

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22
Q

What arises where land is a business asset?

A

A rebuttable presumption of a tenancy in common

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23
Q

What happens when the purchase price of a non-domestic property is paid in unequal shares?

A

A rebuttable presumption of a tenancy in common arises

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24
Q

Define severance in the context of joint tenancy

A

The process of separating off the share of a joint tenant so that the right of survivorship no longer applies

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25
What title must be held as a joint tenancy for severance to apply?
The legal title
26
What can the equitable title be held as?
Joint tenancy or tenancy in common
27
Why might an equitable joint tenant want to sever the joint tenancy?
To exclude the operation of survivorship
28
Does severance end co-ownership?
No, it changes the basis on which the equitable co-owners hold the title
29
What occurs if one joint tenant dies before severance?
The deceased's interest accrues to the remaining joint tenants
30
What happens to a severed interest upon the death of a tenant in common?
It passes under their will or by intestacy rules
31
What does LPA 1925, s 36(2) state about severance?
Only equitable joint tenancies can be severed, not legal ones
32
What are the two basic ways to sever an equitable joint tenancy according to LPA 1925, s 36(2)?
* Notice in writing * Other acts or things
33
What is the purpose of preserving the simplicity of the legal title?
To avoid complications with legal ownership and documentation
34
What must occur for severance to be effective according to s 36(2)?
It must take place during the joint tenant’s lifetime
35
What is a method of severance recognized by Williams v Hensman?
Unilateral act by one joint tenant
36
What are the three types of unilateral acts that can sever a joint tenancy?
* Total alienation * Partial alienation * Involuntary alienation
37
What is total alienation?
Disposing of the interest permanently by sale or gift
38
What is partial alienation?
Temporarily disposing of the interest through mortgage or lease
39
What occurs during involuntary alienation?
A joint tenant is declared bankrupt, severing their equitable interest
40
What constitutes severance by mutual agreement?
All equitable joint tenants agree to sever one person's interest
41
What is mutual conduct in the context of severance?
A course of dealing indicating interests are treated as a tenancy in common
42
What must a notice for severance in writing demonstrate?
An unequivocal and irrevocable intention to sever the equitable joint tenancy
43
How must the notice of severance be served?
To all other equitable joint tenants
44
When does severance take effect upon notice being served?
The moment the notice is served
45
What is one way to sever an equitable joint tenancy?
By giving a notice in writing to all other equitable joint tenants ## Footnote The notice must adhere to specific rules concerning content and service to be effective.
46
What must a notice demonstrate to sever an equitable joint tenancy?
An unequivocal and irrevocable intention to sever the equitable joint tenancy immediately.
47
True or False: A notice to sever a joint tenancy must be signed.
False ## Footnote There are no particular formalities required for the notice.
48
In the case of Re Draper’s Conveyance, what was the key factor that led to the successful severance?
The divorce petition showed a clear intention for the joint tenancy to be severed immediately.
49
In Harris v Goddard, why was there no severance of the joint tenancy?
The divorce petition did not show a sufficient desire to sever immediately.
50
How can a notice in writing be served to sever a joint tenancy?
By handing it over personally or posting it.
51
What is the legal implication if a notice is posted and not returned undelivered?
It is deemed served at the time it would ordinarily be delivered.
52
What happens if not all equitable joint tenants receive the notice?
The notice is completely ineffective.
53
What was the outcome of the case Kinch v Bullard regarding notice delivery?
The notice was considered served when delivered to the home, regardless of whether it was read.
54
How can an equitable joint tenancy be severed by 'other acts or things'?
Through unilateral acts, mutual agreement, or mutual conduct.
55
List the three ways identified in Williams v Hensman that can sever a joint tenancy.
* A unilateral act by a joint tenant operating on its own share * Mutual agreement of the joint tenants * Any course of dealing indicating interests treated as a tenancy in common.
56
Define total alienation in the context of severing a joint tenancy.
Acts of total alienation occur when the severing owner disposes of the interest permanently.
57
What is partial alienation?
Acts where the severing owner temporarily disposes of the interest, such as through a mortgage or lease.
58
What constitutes involuntary alienation?
When a joint tenant is declared bankrupt by the court.
59
What was held in First National Security v Hegarty regarding mortgage and joint tenancy?
The husband’s fraudulent mortgage was deemed to sever his equitable interest.
60
What is required for severance by mutual agreement?
All equitable joint tenants must agree that one person’s interest is severed.
61
In Burgess v Rawnsley, what constituted a mutual agreement to sever the joint tenancy?
An informal agreement to sell one party's share for a specified price.
62
What is mutual conduct in the context of severing a joint tenancy?
Any course of dealing that suggests the interests are treated as constituting a tenancy in common.
63
In Davis v Smith, what led to the conclusion of severance by mutual conduct?
The manner of negotiations indicated both parties recognized separate shares.
64
What did the court conclude in Dunbabin v Dunbabin regarding mirror wills?
The mirror wills showed a course of conduct sufficient to sever the joint tenancy.
65
What was the significance of the case Dunbabin v Dunbabin [2022] EWHC 38?
It considered whether mirror wills inconsistent with the law of survivorship indicated a mutual agreement to sever joint tenancy. ## Footnote HHJ Matthews concluded that the making of mirror wills demonstrated a clear intention to hold property in common.
66
What does the Trusts of Land and Appointment of Trustees Act 1996 (TLATA 1996) govern?
It governs the operation of trusts of land and the resolution of disputes related to land held in trust.
67
What is a key characteristic of co-ownership?
Involves two or more people owning the same land simultaneously.
68
What can happen if co-owners have differing opinions about the property?
Disputes may arise regarding whether to sell the property or not.
69
Who can apply to the court under TLATA 1996, s 14?
Any person with an interest in the land, including trustees, beneficiaries, mortgagees, and those holding charging orders.
70
What can the court order under TLATA 1996, s 14?
Orders may include: * Sale of property * Allowing a beneficiary into occupation * Determining the nature or extent of a beneficiary’s interest.
71
What factors must the court consider under TLATA 1996, s 15 when making decisions?
The court must consider: * The intentions of those who created the trust * The purposes for which the property is held * The welfare of minors occupying the land * The interests of secured creditors.
72
What does TLATA 1996, s 15(1)(a) refer to?
The intentions of the person or persons who created the trust.
73
How does the court assess the continuing purpose of property under TLATA 1996, s 15(b)?
The court examines the original purpose of the property and whether that purpose continues to exist.
74
What was the outcome in In re Ever’s Trust [1980] regarding the family home?
The court refused the order for sale because the property was bought as a family home, and that purpose was still continuing.
75
What was the key issue in Jones v Challenger [1961] concerning the property?
The purpose for which the property was bought had ceased to exist, leading to an order for sale.
76
What does TLATA 1996, s 15(1)(c) emphasize regarding minors?
It emphasizes the welfare of any minor occupying or expected to occupy the land as their home.
77
How has the court's approach to creditors' interests changed since TLATA 1996?
The interests of secured creditors are now just one factor among many, without a presumption for or against a sale.
78
What was the ruling in Bank of Ireland Home Mortgages v Bell [2001]?
The Court of Appeal ordered a sale, prioritizing the bank's interests due to significant debt.
79
What did the court decide in Putnam and Sons v Taylor [2009] regarding the secured creditor?
The court granted an order for sale due to the husband's unmanageable debts, despite the continuing purpose of the family home.
80
What was significant about the case Fred Perry v Genis [2015]?
The court ordered a sale despite potential disruption to children's education, prioritizing commercial interests.
81
What does TLATA 1996, s 15(3) require the court to consider?
The circumstances and wishes of beneficiaries over 18 or the majority in case of dispute.

FLK 2: Land Law (8 decks)

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