Trusts & Coownership Flashcards by Annie Jenney

Resulting trust:

Contribution to purchase price: share proportionate to contribution (Dyer v Dyer)

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Contributions to mortgage payments suffices for resulting trust

Laskar v Laskar

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Where property purchased in joint names for joint occupation and both responsible for mortgage: no resulting trust arising from contributing in unequal shares

Jones v Kernott

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Constructive trust is based on intention of parties:
Express common intention
Inferred common intention

Lloyds Bank v Rosset

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Trustee may require one beneficial owner to pay occupation rent to beneficiary whose right to occupy had been excluded or restricted as way of compensation

Dennis v McDonald

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Obligation to pay occupation rent to other beneficiary as compensation does not extent to beneficiaries who voluntarily vacate

Murphy v Gooch: relationship breakdown held not to be voluntary

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Trustees can physically partition land to allow different beneficiaries to occupy exclusively

Rodway v Landy

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Express declaration to hold as tenants in common: conclusive as to size of shares

Re Pavlou

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If there is express declaration as to how equitable title is to be held, this prevails

Pink v Lawrence

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No express declaration as to equitable ownership: equity follows law so joint tenancy

Cowcher v Cowcher

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If no express declaration as to equitable ownership, joint tenancy unless words of severance present

Eh “in equal shares” (Payne v Webb)

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If no express declaration as to equitable ownership, joint tenancy unless unequal contributions to purchase price: undivided shares in proportion to respective contributions

Bull v Bull

Stack v Dowden: no application where family home unless evidence to contrary (confined in Jones v Kernott)

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If no express declaration as to equitable ownership, joint tenancy unless property purchased for commercial enterprise

Lake v Craddock

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If no express declaration as to equitable ownership, joint tenancy unless coowners are mortgagees (two lenders pool money to give borrower single loan, who grants single mortgage: lenders have tenancy in common)

Morley v Bird

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Recognised modes of severance falling under “other acts or things”

Williams v Hensman:
Act operating on own share
Mutual agreement
Mutual conduct
Homicide (unlawful killing of another joint tenant = severance (Cleaver v Mutual Reserve Fund)

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Severance cannot be done by will

Re Caines

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Generally, severed share quantified on basis of equality, irrespective of initial contributions

Goodman v Gallant

x number of joint tenants: each has 1/xth share when sever

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Possible to be big both joint tenant and tenant in common at same time over same property

Wright v Gibbons

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Divorce documentation should never amount to effective severance as not sufficiently irrevocable

Nielsen-Jones v Fedden

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If send written notice to sever by normal post, must prove it actually arrived

Kinch v Bullard

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Written notice to sever need not have been read

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Re 88 Berkley Road

Entering specifically enforceable contract to sell is act operating on own share to sever

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Brown v Raindle

Mortgages beneficial interest: act operating on own share so severance

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First National Securities v Hegarty

Bankruptcy = involuntary alienation so severance as act operating on own share

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Re Pavlou

Commencement of litigation is act operating on own share so severance provided intention to sever is final at commencement of proceedings

Re Draper's Conveyance

Mutual agreement to sever must be between all beneficiaries

Wright v Gibbons

Mutual agreement to sever need not be specifically enforceable contract

Burgess v Rawnsley

Mutual agreement to sever must be fixed and unchanging so must go beyond "agreement in principle"

Gore and Snell v Carpenter

Must be unequivocal intention to sever when severing through mutual agreement. Can be implied eh agreeing upon death interests will pass to child

Morley v McDonald

Agreement to merely sell not sufficient to sever through mutual agreement unless also agree to sever proceeds

Davis v Smith

Execution of mutual wills indicates common intention to sever through mutual conduct

Re Wilford's Estate

Negotiations between joint tenants in relation to each other's share can result in severance but mere offer and counter offer not sufficient

Burgess v Rawnsley

Where express declaration of trust of land: conclusive as to nature and extent of beneficial rights

Pettitt v Pettitt

Factors under s 15 TOLATA not exhaustive: can consider other factors

Eg interest of disabled adult (First National Bank v Achampang)

Case law pre-TOLATA must be treated with caution

Mortgage Corporation v Shaire (because emphasis has moved from duty to sell to mere power to sell)

Where purpose for which property purchased can still be fulfilled, court inclined not to order sale under s 14 TOLATA

Re Buchanan-Wollaston's Conveyance

Where purpose property bought was home for couple: relationship breakdown means purpose dead

Jones v Challenger Presence of minors may sustain purpose for longer (Re Ever's Trust)

Court inclined to order sale of property under s 14 TOLATA where property too big for sole occupation

Jackson v Jackson

Court may postpone sale of property under s 14 TOLATA to enable coowners to buy out other coowner

Ali v Hussein

Court may postpone sale of property under s 14 TOLATA if one of coowners is ill

Bank of Ireland Home Mortgages v Bell

Court may postpone sale of property under s 14 TOLATA to allow husband and wife to conclude private sale and find alternative property

Mayes v Mayes

Court may refuse to order sale under s 14 TOLATA but order occupying coowner to pay rent to other as compensation

Dennis v McDonald

When determining whether to order sale under s 14 TOLATA (application by trustee in bankruptcy), considerations cannot include needs of bankrupt

Everitt v Budhram: expressly excluded under s 335A Insolvency Act 1986

Order for sale under s 14 TOLATA postponed for 18 months as spouse had schizophrenia

Nicholls v Lan

Order for sale under s 14 TOLATA postponed to 3 months after bankrupt's death

Re Bremner: bankrupt had terminal cancer with life expectancy of 6 months

Order for sale under s 14 TOLATA indefinitely postponed as spouse had severe illness and restricted mobility

Claughton v Charalambous

Disruption of education not exceptional enough to justify postpone order for sale under s 14 TOLATA

Re Citro

Order for sale under s 14 TOLATA postponed for 3 years as eldest child was severely disabled through cerebral palsy

Re Haghighat

Courts recognised broader interpretation of what qualifies as exceptional may be needed when considering ordering sale under s 14 TOLATA by trustee in bankruptcy to not infringe Art 8

Berca v Mears and Donohoe v Ingram: still not exceptional enough. Held usual stress and upheaval of selling family home not exceptional

Confirmed s 335A Insolvency Act 1986 does not infringe Art 8

Ford and another v Alexander

Trusts & Coownership Flashcards

(50 cards)