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SQE1 - Land Law > 5. Co-Ownership of Land > Flashcards

5. Co-Ownership of Land Flashcards

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1
Q

What will the court do where, e.g. two parties buy a property, each contributing to the purchase price, but legal estate is conveyed to only one?

A

Infer a resulting trust, with the legal owner holding the estate on trust for both

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2
Q

What are the options where contributions are (1) equal and (2) unequal?

A
  1. Equal: Joint tenancy
  2. Unequal: Tenancy in common
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3
Q

What way must the legal estate be held, and why?

A

As joint tenants, because tenancy in common cannot exist at law

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4
Q

What does the doctrine of survivorship provide?

A

If a joint tenant dies, their interest automatically passes to the surviving tenant(s)

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5
Q

How is a joint tenant’s ownership described?

A

They do not have a share in the land, but are each entitled to possess the whole

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6
Q

What is the impact of the doctrine of survivorship?

A

Any attempt to gift or leave a joint tenancy upon death will fail, and it will revert automatically in the surviving joint tenants

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7
Q

What is the maximum number of trustees that can hold the legal estate in land?

A

Four

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8
Q

What is the limit on the amount of people that can hold the behind-the-scenes equitable interest?

A

No limit

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9
Q

What are the two ways an equitable interest can be held?

A
  1. Joint tenancy
  2. Tenancy in common
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10
Q

Does the doctrine of survivorship apply to joint tenancies in equity?

A

Yes

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11
Q

Does the doctrine of survivorship apply to tenancies in common in law or equity?

A

No

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12
Q

When will a tenancy in common be appropriate?

A

When the parties:

  1. Do not wish for survivorship to apply
  2. Contributed unequally to the purchase
  3. Enter into a commercial transaction where a joint tenancy would be inappropriate
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13
Q

What is a declaration of trust?

A

A conclusive agreement between co-owners as to how their beneficial interest is to be held

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14
Q

What is severance in the context of a beneficial interest?

A

Bringing the equitable joint tenancy to an end and converting it to a tenancy in common

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15
Q

What are the seven ways a equitable joint tenancy can be severed?

A
  1. Written notice
  2. Treating a share as separate
  3. Disposal of equitable interest
  4. Mutual agreement
  5. Course of dealings
  6. Forfeiture
  7. Bankruptcy
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16
Q

What are the two requirements for severance by written notice?

A
  1. Show clear intention to sever
  2. Be sufficiently served
17
Q

One of what two things will cause a written notice of severance to be sufficiently served?

A
  1. Left at last known home or business address, or
  2. Sent there by registered post
18
Q

How might a party treat their share as separate?

A

By attempting to sell it in spite of the doctrine of survivorship and the fact that joint tenants all enjoy the whole

19
Q

After a party disposes of or treats their share as separate, are they completely out of the picture?

A

No, they still hold the legal estate on trust for the purchaser of their share, because severance only concerns the equitable interest

20
Q

Can course of dealings, e.g. agreement between the parties to dispose of share, effect severance even if the agreement is not enforceable?

A

Yes

21
Q

When does severance by forfeiture occur?

A

If one tenant kills the other, the right of survivorship will not apply

22
Q

Why does the bankruptcy of one joint tenant sever an equitable joint tenancy?

A

Because the bankrupt’s equitable share is transferred to the trustee

23
Q

What is the starting point in determining whether an equitable joint tenancy or tenancy in common has been created?

A

Intention of the parties

24
Q

If the intention of the parties cannot be determined, what will the court assume?

A

That equity follows the law, and the beneficial interests reflect the legal interests, i.e. joint tenancy, because tenancies in common cannot exist at law

25
Q

What is overreaching?

A

A process under which a buyer may take property free of a beneficiary’s interest under a trust

26
Q

How many trustees should purchase money be paid to and how does this allow overreaching?

A

When purchase money is paid to all trustees (minimum of two or one if a trust corporation). The payment transfers the equitable interest of the beneficiary from the land and attaches it to the purchase money.

27
Q

What should a buyer do if there is only one trustee, to ensure they take property free of the interest?

A

Ensure that a second trustee is appointed to receive the money, or obtain a written release from the beneficiary regarding this requirement

28
Q

In the registered system, how will behind the scenes beneficial interest typically be evidenced?

A

By a Form A restriction on the proprietorship register

29
Q

What considerations must a solicitor give to a trustee’s duty to consult beneficiaries?

A

A solicitor acting on sale of trust property where adult beneficiaries are involved must have regard to the trustee’s duty to consult and take into account the wishes of at least a minority of them

30
Q

When will sections 14 and 15 of the Trusts of Law & Appointment of Trustees Act 1996 help co-owners?

A

If they cannot decide how or when to dispose of property

31
Q

What does section 14 allow?

A

It allows a trustee or any other person with an interest in property subject to a trust to apply to the courts for an order relating to the trustee’s duties to sell, obtain consent, or declare the nature of a party’s interest

32
Q

What does section 14 not give the court the power to do?

A

Appoint or remove a trustee

33
Q

What does section 15 provide?

A

Factors for the court to consider in determining an application under section 14

34
Q

What are the four factors under section 15?

A
  1. Intentions of those who created the trust (doesn’t really count)
  2. Purpose for which the property subject to the trust is held
  3. Welfare of any minor who occupies or might reasonably be expected to occupy
  4. Interests of any secured creditor
  5. All the circs, including the interests of the beneficiaries holding the majority value of the trust
35
Q

If property is transferred to parties jointly, what is the presumption as to how it is held upon breakdown of the relationship, and who bears the burden of displacing that presumption?

A

Legal and equitable joint tenancy is presumed, and it is for the party claiming otherwise to prove this

36
Q

If the court does have to make a split upon the breakdown of a relationship, what proportion will each receive and what will the court consider?

A

Each party will receive the proportion the court considers fair, considering all the circumstances and not just those surrounding the purchase

SQE1 - Land Law (16 decks)

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