trusts Flashcards
Which one of the following is essential in order for co-ownership to exist?
Unity of intention
Unity of interest
Unity of time
Unity of title
Unity of possession
Unity of possession
Which of these statements is an accurate explanation of unity of time?
The co-owners’ interests must all take effect at the same time.
The co-owners’ interests must all last for the same length of time.
The co-owners must move into the property at the same time.
The co-owners must sign the transfer deed at the same time.
The co-owners’ interests must all take effect at the same time.
Which of the following is the best explanation of the concept of survivorship?
When a joint tenant dies, that person’s share immediately accrues to the surviving joint tenants.
When a joint tenant dies, that person’s interest passes to the person named in their will.
When a joint tenant dies, that person’s share passes to the person named in their will.
When a joint tenant dies, that person’s interest does not pass to the person named in their will
When a joint tenant dies, that person’s notional interest immediately accrues to the surviving joint tenants.
When a joint tenant dies, that person’s notional interest immediately accrues to the surviving joint tenants.
This is correct. Joint tenants are viewed as a single entity and therefore do not have a distinct ‘share’ of the property. Instead they have a notional interest which disappears on their death meaning the property accrues to the surviving joint tenants.
What is a tenancy in common?
A distinct and divided share in land
An interest held by one of a number of people seen as a collective entity
A distinct but undivided share in land
A distinct but undivided share in land
A tenancy in common is a distinctly quantified share in the whole property, but the holder cannot say that any particular part is theirs: hence, ‘undivided’ share.
In which of the following circumstances will an equitable tenancy in common be presumed?
Where the land is bought as a home
Where there have been equal contributions to the purchase price
Where there is no express declaration of joint tenancy
Where there have been unequal contributions to the purchase price
Where there is wording such as ‘in equal shares’
Where there have been unequal contributions to the purchase price
Which statement best describes the effect of severance of an equitable joint tenancy?
It changes the basis on which the equitable title will be held in future
It brings co-ownership to an end
It prevents survivorship from operating
It enables a co-owner to dispose of his equitable share to whoever he pleases
I DON’T KNOW
This is correct. Severance does not destroy co-ownership but simply changes the basis on which the parties hold the equitable interest in the future
What effect does making a will have on an equitable joint tenancy?
It will sever the equitable joint tenancy
It will sever the legal and equitable joint tenancies
It will have no effect
It will sever the legal joint tenancy
I DON’T KNOW
SUBMIT ANSWER
It will have no effect
This is correct. A will does not have any effect until after death by which time survivorship has operated.
A, B, C and D bought a house together. A and D contributed 15% of the purchase price each; B contributed 20% and C contributed 50%. They declared themselves to be equitable joint tenants. C severed the joint tenancy. What share will C now have?
C continues as legal joint tenant but has 50% of the equitable title as tenant in common
C continues as legal joint tenant but has 25% of the equitable title as tenant in common
C has 25% of both the legal and equitable titles
C has 50% of both the legal and equitable titles
C continues as legal joint tenant but has 25% of the equitable title as tenant in common
This is correct. The legal joint tenancy cannot be severed. If the equitable joint tenancy is severed the holder takes an equal share as tenant in common, irrespective of the size of their initial contribution
A and B bought a property together and paid 75% and 25% of the purchase price respectively. They declared themselves to be equitable joint tenants. A severed the joint tenancy. What is the position now in equity?
A is now a tenant in common as to 75% and B is a joint tenant as to 25%
A is now a tenant in common as to 50% and B is a joint tenant as to 50%
A and B are now tenants in common as to 50% each
A and B are now tenants in common as to 75% for A and 25% for B
I DON’T KNOW
SUBMIT ANSWER
A and B are now tenants in common as to 50% each
This is correct. When the joint tenancy was severed, A received an equal share irrespective of the size of A’s initial contribution: Goodman v Gallant
On whom must notice in writing be served to effect severance?
On all legal and equitable joint tenants
On all equitable owners
On all equitable joint tenants
On all legal and equitable owners.
This is correct. The equitable joint tenants are the only people who will be affected by the severance and LPA 1925, s 36(2) specifically states that they must all be served.
What statutory formalities apply to a notice in writing?
The notice in must be in writing, incorporate all the relevant terms and must be signed
The notice need not comply with any formalities
The notice must be contained in a valid deed
The notice must be made in signed writing.
I DON’T KNOW
The notice need not comply with any formalities
This is correct. No statutory formalities are prescribed
In re Draper’s Conveyance what was the ‘writing’ which constituted notice in writing which severed the joint tenancy?
An application to the Court of Protection
A solicitor’s letter
A contract for sale
A divorce petition
I DON’T KNOW
A divorce petition
According to LPA 1925, s 196(3) when is a notice on writing effectively served?
When it has been handed over personally
When it is delivered to the last known place of abode or business of the addressee
When it is read by the addressee
When it is sent by registered post and not returned marked ‘undelivered’.
This is correct. Severance takes effect on service, and not when/if the notice is actually read: Kinch v Bullard
When it is delivered to the last known place of abode or business of the addressee
In Kinch v Bullard Neuberger J made remarks about whether it is possible for the sender of the notice in writing to change their mind and ‘cancel’ the notice. What did he say?
The sender can inform the address at any time before or after the notice is served that he wishes to revoke it
The sender can change his mind by destroying the notice when it is delivered.
The sender can revoke the notice if he informs the addressee before the notice is served that he wishes to revoke it.
The sender cannot change his mind after the notice has been posted
I DON’T KNOW
SUBMIT ANSWER
This is correct. Although this seems rather strict, in that it is not possible to revoke after service, it actually logical. The rule is clear and there can be no room for argument
The sender can revoke the notice if he informs the addressee before the notice is served that he wishes to revoke it.
Which one of the following is a unilateral act of partial alienation which could sever an equitable joint tenancy?
A gift of an equitable interest
A properly served notice in writing
A sale of an equitable interest
A declaration of bankruptcy
A mortgage of an equitable interest
This is correct. A mortgage is an act of partial alienation because when the loan is repaid the owner will retain the equitable interest unencumbered.
What was the outcome of the case of Hunter v Babbage?
The joint tenancy was not severed as there was neither mutual agreement nor mutual conduct in the circumstances.
The joint tenancy was severed by mutual conduct with each party receiving a 50% share as tenant in common.
The joint tenancy was severed by mutual agreement with each party receiving a share as set out in the draft consent order as tenant in common.
The joint tenancy was severed by mutual agreement with each party receiving a share as set out in the draft consent order as tenant in common.
The joint tenancy was severed by mutual agreement with each party receiving a 50% share as tenant in common.
I DON’T KNOW
SUBMIT ANSWER
This is correct. The mutual agreement was evidenced by the draft consent order in divorce proceedings. The shares were equal, based on the number of joint tenants: the rule in Goodman v Gallant prevailed over the terms of the draft consent order.
Why was there no severance by mutual conduct in Gore and Snell v Carpenter?
Because the ongoing negotiations had not produced a final agreement
Because the ongoing negotiations had not continued for a long enough period
Because it was not possible to infer from ongoing negotiations any mutual working towards a final end in view
I DON’T KNOW
Correct
This is correct. The negotiations did not have any particular aim (unlike in Davis v Smith) and there was no evidence that there was no ‘mutual’ acceptance that Mrs Carpenter would hold tenancies in common. In that situation, the parties were not ‘mutually’ conducting themselves towards the same end.
NEXT QUESTION
In Burgess v Rawnsley what did the court say must be present in order for the joint tenancy to be severed by mutual agreement?
An express or inferred agreement to change the basis on which co-ownership will continue
An inferred agreement to end the co-ownership
A specifically enforceable contract for one party to ‘buy the other out’
An express agreement to sell the property
I DON’T KNOW
This is correct. Co-ownership does not end on severance of the joint tenancy: it continues on a different basis. An agreement to do this can be expressly stated, or (as in this case) inferred from what the parties said and did.
An express or inferred agreement to change the basis on which co-ownership will continue
Trustees have the powers of an absolute owner in relation to co-owned property: Trusts of Land and Appointment of Trustees Act 1996, s 6 (5). What brake is put on that power within that section?
The trustees must act in accordance with their duty of care
The trustees must have regard to the rights of the beneficiaries
The trustees must consult the beneficiaries of full age
This is correct: TLATA 1996, s 6(5)
The trustees must have regard to the rights of the beneficiaries
Why is the beneficiaries’ right to be consulted, contained in TLATA 1996, s 11, not as extensive as it first seems?
Because the trustees do not have to act on the beneficiaries’ wishes unless in the general interests of the trust
Because the trustees have an overall duty of care to the beneficiaries and must act in their best interests anyway
Because the trustees only need to consult beneficiaries of full age and capacity
I DON’T KNOW
This is correct. The trustees need only consult so far as is practicable and only need give effect to the beneficiaries’ wishes so far as is in the general interest of the trust.
Because the trustees do not have to act on the beneficiaries’ wishes unless in the general interests of the trust
If a flat is bought by co-owners who intend to let it our as an investment, why do the equitable owners not have a right of occupation under TLATA 1996, s 12?
The land is not intended to be occupied by them
The trustees cannot exclude anyone who is already in occupation
The land is not suitable for occupation by them
This is correct. The purpose of the trust is to generate income by letting the flat. In those circumstances the beneficiaries do not have the right to occupy: TLATA 1996, s 12(1)
The land is not intended to be occupied by them
Who is entitled to make a court application in relation to co-owned land under Trusts of Land and Appointment of Trustees Act 1996, s 14?
The beneficial owners only
Anyone who has an interest in the land
Anyone who has or expects to have an interest in the land
The legal owners only
The legal owners and any legal mortgagees only
I DON’T KNOW
Anyone who has an interest in the land
This is correct. This means that legal trustees, beneficiaries, and secured creditors can all make applications.
Which of the factors in Trusts of Land and Appointment of Trustees Act 1996, s 15 is given the greatest weight in making a decision, according to the provisions set out in the statute?
The statute states that the interests if secured creditors carry greater weight.
None – the statute gives no indication of any factor having greater weight than the others.
The statute states that the circumstances and wishes of the beneficiaries carry greater weight.
The statute states that the purpose for which the property was purchased carries greater weight.
The statute states that the interests of minors living in the property carry greater weight.
I DON’T KNOW
This is correct. There is nothing in TLATA 1996, s 15 which states that any factor is to be given greater weight than others
None – the statute gives no indication of any factor having greater weight than the others.
In which case did the judge state that the law had changed with Trusts of Land and Appointment of Trustees Act 1996 and that the interests of creditors are one of four factors to be considered, not the decisive factor?
Putnam v Taylor
Mortgage Corporation v Shaire
Fred Perry v Genis
Bank of Ireland Home Mortgages v Bell
Mortgage Corporation v Shaire
