4 - Co Ownership: Joint Tenants Flashcards
Who are trustees?
They hold the legal estate and have a right to deal with the land (sell/mortgage) and look after the land on a beneficiaries’ behalf.
Who are beneficiaries?
They hold the beneficial interest recognised in equity. They have a right to be consulted on sale or mortgage by trustee. Right to proceeds of sale.
What are the two types of co-ownership?
Joint tenancy - each own whole property
Tenants in common - own notional share
What is stated in s1(6) LPA 1925 about how trustees hold land?
Trustees can only hold land as joint tenants.
What happens on the death of a joint tenant?
On death of a joint tenant, the doctrine of survivorship applies and the property passes to the surviving joint tenant(s)
What happens on the death of a tenant in common?
On death of a tenant in common, their share in the property passes as per their Will or the intestacy rules.
What are the four unities which must be satisfied in order for joint tenancy to exist?
1 - possession: tenants entitled to possession of whole land (not trespassing)
2 - interest: each tenant must hold some interest, e.g. both hold FH or LH
3 - time: interests must arise at once
4 - title: title must be gained from same document
What is overreaching and what is it governed by?
oOverreaching allows a purchaser to take land free of any beneficiaries’ interest by removing their interest in the property and placing it into the proceeds of sale. There must be at least two trustees acting in the sale for overreaching to occur. Governed by s2 LPA 1925
How can overreaching occur if a sole surviving trustee decides to sell the land (where there is at least one beneficiary)?
They will have to appoint a co-trustee to sell with them
How can each party protect their interests where unequal contributions are made to a purchase?
By being described as tenants in common, indicating the shares owned. Shown as Memorandum of Severance on the Conveyance in unreg land and as restriction in reg land.
What happens when a beneficial joint tenant severs joint tenancy?
Severance converts beneficial joint tenants to beneficial tenants in common. The legal estate cannot be severed and will always be held by trustees as joint tenants. This only affects the share of the severing party which is severed in proportion to the number of beneficial joint tenants.
What are the two methods of severing joint tenancy?
1 - notice in writing
2 - Williams v Hensman (operating on own share, mutual agreement, course of dealing where interests were treated as tenants in common)
What are the two key rules for severance of joint tenancy by notice under s36(2) LPA?
Must be an intention to sever immediately and notice must be served on all other joint tenants.
What effect does Harris v Goddard have on severance of joint tenancy by notice?
s36 notice must show intention to sever immediately to be effective.
What rule does Kinch v Bullard show on severance of joint tenancy by notice?
Notice is effective upon service, even if unread
