2. Co-ownership & Trusts Flashcards
What is co-ownership?
Joint ownership of land by two or more people at the same time
What is the general rule regarding legal and equitable estates?
Legal estate cannot be held in an undivided share, equitable estate is held on trust.
What is a trust of land?
Concurrent sharing of land that creates a trust.
What is an express trust?
A trust created through a written declaration by the settlor.
What is an implied trust?
A trust created through a person’s conduct without formalities.
Why should a client sign a declaration of trust?
It serves as evidence of their intentions.
Who are the trustees in a trust of land?
The legal owners with no beneficial entitlement.
Who are the beneficiaries in a trust of land?
The equitable owners with beneficial entitlement.
What types of estates can a co-owner hold?
Joint tenancy or tenants in common.
What are the requirements for holding legal title?
Must be aged 18 or over, maximum of four trustees.
What powers do legal title holders have?
All powers of an absolute owner, limited by duty to consult beneficiaries.
What is overreaching in co-ownership?
Appointment of a second legal trustee to overreach equitable interests.
What happens to the equitable interest when a co-owner dies?
It passes under their will/intestacy to another party.
Who retains legal title when a co-owner dies?
The surviving party retains legal title.
What is equitable title?
The right to enjoy and benefit from the property.
Who can hold equitable title?
Anyone can hold it.
Are there any limits on the number of people who can hold equitable title?
No limits.
Is severance allowed for equitable title?
Yes, severance is allowed.
What are the two forms of co-ownership?
Joint tenancy and tenants in common.
What is joint tenancy?
Property owned by two or more people jointly.
What is right of survivorship?
On the death of a joint tenant, their interest passes automatically and immediately to the survivor.
What is undifferentiated ownership?
Jointly entitled to the whole of the property without having a clear division of share.
What is severance?
Can only sever in equity and convert beneficial interests into a tenancy in common - no severance of legal estate.
What is tenancy in common?
Property owned by two or more people jointly.
What is the difference between joint tenancy and tenancy in common?
No right of survivorship in tenancy in common, and undivided shares with a clear division of share.
What is an express declaration?
Must make an express declaration to hold the property as tenants in common, unless there is fraud/mistake as to declaration.
Give an example of when an express declaration is necessary.
Unequal contributions to the purchase price of the property.
What are the four unities used to determine joint tenancy or tenancy in common?
Possession, interest, title, and time (PITT).
What is the possession unity?
No co-owner is excluded from any part of the land.
What is the interest unity?
All co-owners hold the same type of interest for the same amount of time.
What is the title unity?
All co-owners obtain title from the same transfer deed or lease.
What is the time unity?
The interest of all co-owners took effect at the same time.
What does possession unity indicate?
It may indicate a tenancy in common.
If all four unities are present, what can the equitable interest be held as?
Either a joint tenancy or a tenancy in common.
What is the second test to determine joint tenancy?
Does the deed transferring the land contain an express declaration that they are beneficial joint tenants?
What is the third test to determine joint tenancy?
Does the deed transferring the land to the co-owners contain words of severance?
What is joint tenancy in equity?
A form of joint tenancy that can be severed in equity.
What is presumption in joint tenancy?
Equitable interest held as joint tenants.
What is the exception to equal shares in joint tenancy?
Unequal shares allowed if co-owner provides greater share of finance.
What happens to the interest when a joint tenant dies?
Interest immediately goes to surviving joint tenants.
How can joint tenancy be converted to tenancy in common?
Severance of joint tenancy.
What is the effect of severance of joint tenancies?
Converts joint tenancy into tenancy in common.
What happens when severance occurs with 2 joint tenants?
Equal shares in tenancy in common.
What happens when severance occurs with 3+ joint tenants?
Only the co-owner who severs becomes tenant in common.
Who can initiate the severance of joint tenancy?
Any of the joint tenants.
Can severance occur after death?
No, must sever while alive.
What are the methods of severance?
Notice in writing or certain kinds of behavior.
Is individual contribution to purchase price relevant during severance?
No, it is irrelevant.
What is required for formal severance?
Written notice stating irrevocable intention to sever.
Does the notice for formal severance need to be signed?
No, it does not need to be signed.
What must the notice for formal severance express?
Desire to end joint tenancy immediately or express a future intent.
How should the notice for formal severance be delivered?
Received by all other joint tenants through personal service or post.
doesnt have to be read just delivered
What is an alternative method of delivery for formal severance?
Send by registered post, presumed served if not returned undelivered.
Does the recipient need to read the severance notice for it to be valid?
No, it does not need to be read.
Can a notice for severance be withdrawn?
Yes, must communicate intent before notice is given.
What are the acts that can operate on a joint tenant’s share?
Informal severance (no service/notice required).
What are the ways to sell or gift a share?
To a stranger or fellow joint tenant
What is mortgaging or leading a share?
Using the share as collateral for a loan
What is forfeiture of a lease?
Loss of lease due to breach of terms
What happens if a joint tenant is declared bankrupt?
Severance of their share
What is litigation?
Legal action or lawsuit
What is severance by mutual agreement?
Agreement to separate shares
What happens if all joint tenants agree to sever?
No formalities required
oral agrement will suffice
What is severance by mutual conduct/course of dealing?
Actions indicating separation of shares
What is the significance of negotiations in severance?
Negotiations indicate intent to sever
What are long term assumptions in relation to shares?
Discussing future handling of shares
What are mutual wills?
Wills covering the shares of both parties
What does not amount to severance?
Physically dividing or leaving the property
What is severance by bankruptcy?
Involuntary alienation due to bankruptcy
What is severance by homicide?
Wrongdoer does not benefit from crime
What is post-acquisition money management?
Both parties responsible for mortgage
What evidence is required for respective shares?
Evidence of common intention
What is Tenancy in Common?
Co-owners hold distinct but undivided shares
What is the requirement for Tenancy in Common?
Unity of possession
What happens to equitable interest in Tenancy in Common upon death?
Passes under intestacy rules or terms of will
What is a resulting trust?
Contribution to purchase price without evidence of gift or loan
What is a constructive trust?
Equitable remedy to prevent unjust enrichment
What is the Lloyds Bank v Rosset case about?
An agreement + detrimental reliance.
When can an agreement be made in relation to the purchase of property?
At the time of the purchase or subsequent to it.
What must a non-legal owner show in order to rely on an agreement?
They must show that they relied on the agreement to their detriment.
What are the two factors that can establish an agreement?
Conduct and direct financial contribution.
What is the process for selling jointly owned property?
All the trustees need to execute a deed transferring the legal estate.
What does the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) apply to?
All land acts, not just co-owners.
What duty do trustees have under s.11 of TOLATA 1996?
They have a duty to consult and take into account the wishes of the beneficiaries or a majority of them before selling trust property.
What is the general rule under s.14 of TOLATA 1996?
Anyone with an interest in land can apply to the court for an order relating to it, such as selling the land or allowing occupation by a beneficiary.
Does the court have the power to appoint or remove a trustee?
No, the court does not have the power to appoint or remove a trustee.
What orders can the court make in relation to the sale of property?
An immediate order for sale, postpone sale, split up property, refuse a sale, or make an order regulating the right to occupy.
What factors will the court consider under s.15 of TOLATA 1996?
Intention, purpose, welfare, creditors, and wishes.
What is the court’s consideration regarding the intention of the person who created the trust?
The court will consider the intention of the person who created the trust.
What is the court’s consideration regarding the purpose for which the trust is held?
The court will consider the purpose for which the trust is held.
What happens if the purpose of the purchase continues?
If the purpose of the purchase continues, it is unlikely that the court will order a sale.
What happens if the purpose of the trust has changed over time?
If the purpose of the trust has changed over time, the court will consider whether the purpose is continuing.
What is the court’s consideration regarding the welfare of minors who occupy or expect to occupy the property?
The court will consider the welfare of minors who occupy or expect to occupy the property.
What is the court’s consideration regarding the interest of secured creditors of any beneficiary?
The court will consider the interest of secured creditors of any beneficiary.
What takes priority over the interests of others in the absence of exceptional circumstances?
Interests of the mortgagee
What will the court consider if the property remains unsold?
Rising mortgage debt and risk of wiping out property value
What factor does the court consider when determining the wishes of the beneficiaries?
Size of their interests
What does the court consider when making a decision?
All circumstances of the case
What are exceptional circumstances?
Circumstances beyond normal disruption or disrupted family life
What are some examples of exceptional circumstances?
Downsizing, going to nursery, or a must-move situation
Under what condition can the sale be postponed until the child is 17?
If it does not cause significant difficulty to creditors
What type of illness may count as an exceptional circumstance?
Illness that is proven to be linked to why the house remains unsold
How long can the sale be postponed for a schizophrenic beneficiary?
1 year
HOW DOES SEVERANCE IMPACT LEGAL ESTATE?
No effect on it, so unless person who severed dies they will remain part of legal estate
if u contribute 10% to purchase price and u sever propety with three other legal owners. how much do u own?
25%; proportional
who must trustee consult?
consult with all of the beneficiaries who are of full age (18 or over) and who have an interest in possession (entitled to an immediate interest in the land).
severance
**for notice: **writing immediate and delivered
For mutual agreement to sever a joint tenancy, all co-owners must be aware of and agree to the severance. If one co-owner is unaware of the severance or does not consent, then mutual agreement is not established.
notice given to joint tenant holders
to resolve dispute
Any person who is a trustee or has an interest in the property subject to the trust may make an application to the court and the court may make such order as it thinks fit
