3): Co-Ownership Flashcards
What is co-ownership in land law?
when two or more people concurrently own and possess land.
It can be held as a joint tenancy or a tenancy in common.
What happens legally when there is co-ownership of land?
trust for land arises.
legal estate is held by the legal owners as trustees for the co-owners beneficially.
What is the difference between joint tenancy and tenancy in common in equity?
Joint Tenancy: Equitable interest is held jointly. All co-owners are treated as one unit.
Tenancy in Common: Equitable interest is held in distinct shares, which can be equal or unequal.
Who can hold legal title in co-ownership and how?
Legal title can only be held as a joint tenancy by a maximum of four people as trustees.
Who can hold equitable title in co-ownership and how?
Equitable title can be held as a joint tenancy or a tenancy in common by an unlimited number of people.
What are the key characteristics of a joint tenancy?
One single entity owns the whole.
All four unities must be present: possession, interest, title, time.
Right of survivorship applies.
Severance by one tenant affects the equitable interest.
What are the key characteristics of a tenancy in common?
Co-owners have separate, distinct shares.
Only the unity of possession is required.
No survivorship—interest passes under will or intestacy.
What is the rule of survivorship (jus accrescendi)?
When a joint tenant dies, their share automatically passes to the surviving joint tenants, regardless of any will or intestacy.
What happens when a tenant in common dies?
legal title of property can never be owned as tenancy in common
rule of survivorship applies to legal title always
equitable title can be held as joint tenancy/tenancy in common
equitable interest passes to estate in accordance with will or intestacy rules.
What does severance of joint tenancy mean?
It converts a joint tenancy (in equity) into a tenancy in common, affecting only the equitable interest, not the legal title.
must happen while parties are alive and not by will
How can a joint tenancy be severed?
Written Notice – Must be unequivocal and irrevocable, served on all other joint tenants.
ii. Acts Operating on Own Share – Sale, lease, mortgage, or gift of equitable share.
iii. Mutual Agreement – Clear agreement to sever crucial + valuable consideration to support.
iv. Mutual Conduct/Course of Dealing – Conduct shows separate ownership.
v. Bankruptcy – Severed and assigned to trustee in bankruptcy.
vi. Homicide – Unlawful killing by a joint tenant severs survivorship.
What statute governs dispute resolution between co-owners?
Trusts of Land and Appointment of Trustees Act 1996, particularly s.14 and s.15.
What powers does the court have under TOLATA 1996?
The court can make orders relating to:
i. Functions of trustees, or
ii. Nature or extent of a person’s interest.
What factors must the court consider under s.15 TOLATA 1996?
Intentions of the trust creators
ii. Purpose of the trust property
iii. Welfare of minors occupying the land
iv. Interest of any secured creditors
What is an easement?
A right benefiting one parcel of land (dominant) over another (servient), e.g. right of way.
What are the 4 essential characteristics of an easement?
There must be a dominant and servient land
ii. The easement must accommodate the dominant land (benefit it, not just owner personally)
iii. Dominant and servient land must not be owned and occupied by the same person
iv. The easement must be capable of forming the subject matter of a grant (definable, grantable by deed)
How can easements be created?
Express Grant – Express document granting/reserving easement
ii. Implied by Necessity – No other access to land (landlocked)
iii. Implied by Common Intention – Land use essential to both parties’ shared intent
iv. Rule in Wheeldon v Burrows – Quasi-easements become full easements upon sale subject to rules.
What is the Rule in Wheeldon v Burrows?
To elevate a quasi-easement to a legal easement on the sale of land:
i. The quasi-easement existed prior to sale;
ii. The right is continuous and apparent;
iii. The right is necessary for reasonable enjoyment of the land sold;
iv. The right is in use at the time of sale.
What does Section 62 of the Law of Property Act 1925 do?
automatically passes all existing easements attached to the land upon the transfer of a legal estate, without needing express wording in the conveyance
subject to conditions
what are the conditions for Section 62 of the Law of Property Act 1925 to apply?
There is a conveyance (e.g. freehold sale or lease >3 years in writing);
ii. The right exists at the time of conveyance;
iii. There is diversity of occupation between dominant and servient land;
iv. There is evidence of prior use.
How can easements be acquired by prescription?
A legal easement can be acquired after 20 years’ uninterrupted use, if:
i. The right has been used without force, secrecy, or permission;
ii. Use has been continuous;
iii. Use is by or on behalf of one fee simple owner against another fee simple owner.
What is a freehold covenant?
promise made by one freehold owner (covenantor) to another (covenantee) to do something (positive) or not do something (negative) in relation to land.
What is the ‘burdened’ or ‘servient’ land?
The land owned by the covenantor, which is bound by the covenant.
What is the ‘benefited’ or ‘dominant’ land?
The land owned by the covenantee, which has the benefit of the covenant.
What is a positive covenant?
A covenant where the owner must do something (e.g. perform works, pay money).
What is a negative covenant?
A promise to refrain from doing something on the land (e.g. building, obstructing a view).
Also called a restrictive covenant — no effort or expenditure required.
Are covenants legal interests in land?
No. Covenants are equitable interests, and must comply with s.53(1), LPA 1925 (i.e. must be in writing and signed by the person creating them).
Are covenants enforceable between successors in title?
Yes, but only if the benefit and burden have passed — the original contract binds successors only if conditions for passing are met.
This depends on whether the covenant is positive or negative.
Can the burden of a covenant pass at common law?
No, the burden (positive or negative) cannot pass at common law.
Exception: Mutual benefit and burden rule (Halsall v Brizell) – if someone claims the benefit (e.g. service), they must also accept the burden (e.g. payment).
How can the benefit of a covenant pass at common law?
If all the following are satisfied:
Covenant touches and concerns the land.
Intention for benefit to run with the land.
Original covenantee had legal estate in benefited land.
Successor takes legal title from/under original covenantee.
When can the burden of a negative covenant pass in equity?
Under Tulk v Moxhay, if:
Covenant benefits dominant land.
Covenant touches and concerns dominant land.
Made with intent to burden servient land.
Servient landowner has notice (registered: Charges Register or D(ii) Land Charge).
How can the benefit of a covenant pass in equity?
Three ways:
Annexation (automatic attachment to land):
Express: wording like “for the benefit of…”
Implied: obvious intention; unjust to ignore
Statutory: s.78 LPA 1925 (post-1925 covenants that meet ‘touches’ test)
Assignment: in writing with notice to covenantor
Building schemes: reciprocal covenants apply to all plot buyers
What are the remedies for breach of: (i) a positive covenant and (ii) a restrictive covenant?
Positive covenant: damages and specific performance
Restrictive covenant: injunction and/or damages in lieu
What is a mortgage in land law?
a legal interest in land used as security for a loan.
It must be created by deed to be legal.
What constitutes default under a mortgage?
Failure to repay (interest or capital) or breach of any other loan term.
This allows the lender to enforce its security.
What are the lender’s remedies for enforcing a mortgage?
Possession – lender may take property; court order needed if dwelling house in occupation.
Power of Sale – under s.101 LPA 1925 (must be exercisable under s.103).
Debt Action – sue borrower personally for outstanding sum.
Appointing a Receiver – collects income from income-producing land (e.g. rent).
Foreclosure – rare; lender gets title and ends borrower’s right to redeem.
What rights do lenders have under their power to take possession of property?
Immediate right to possess (no need to wait for default)
Must follow pre-action protocol for residential properties
Court order needed if it’s a dwelling in occupation
Often used as a last resort
What are lenders’ rights under their power of sale remedy?
Implied into mortgage by deed (unless excluded)
Arises when mortgage money due
Exercisable if:
Interest unpaid for 2 months
Formal demand not met
Must act in good faith and obtain proper price
Buyer takes land free of mortgage
What rights to lenders have under the Debt Action remedy?
Personal claim against borrower for unpaid mortgage debt
Used if sale proceeds don’t cover full amount (shortfall)
what happens under the Appointing a Receiver (s.109 LPA 1925) remedy for lenders?
Appointed to manage income-producing land
Collects rent, pays outgoings, applies funds to mortgage
Useful for tenanted property
What happens under the use of the foreclosure remedy for lenders?
Rare and harsh remedy
Lender obtains absolute title to the property
Ends borrower’s equity of redemption
Requires court order
Usually avoided if sale is a fairer solution
How is a legal mortgage protected over unregistered land?
Title deeds: Lender can take custody of title deeds as security
If not (e.g. puisne mortgage) → must be protected by Class C(i) Land Charge at Land Charges Registry
How is a legal mortgage protected over registered land?
Must be entered on the charges register
It is a registrable disposition under the Land Registration system
What is the order of priority for mortgages over unregistered land?
- Mortgagee with title deeds takes priority
- Where lender has no title deeds (e.g. puisne mortgage):
Must register as a Class C(i) Land Charge
Priority based on earlier registration date
What is the order of priority for mortgages over registered land?
Priority = date of registration on charges register (NOT date of creation)
First registered mortgage = paid out first from sale proceeds
A mortgagee is only bound by a prior interest if it is:
✅ A registered charge
✅ The subject of a notice on the register
✅ An overriding interest
