Co-Owned Land SQE2

Question 1

How can a legal estate be held is by more than one person?

Answer 1

Only as joint tenancy
- limit of 4 (as trustees of land)
- must be 18 and of sound mind

Question 2

What is needed for beneficial interest to be held as tenants in common?

Answer 2

1. Declaration of trust
2. Clear intention if no declaration
   - severance
3. Constructive trust
4. Common Intention constructive trust

Question 3

How can you bring joint tenancy to an end?

Answer 3

Severance of the beneficial interest

1. by written notice
   - clear intention to sever
   - sent 1st class post to current/last know office or place of abode
2. by unilateral act
   - selling/gifting/taking charge over share
   - fraudulently taking charge over whole
3. mutual agreement
   - express agreements/negotiations
4. by mutual conduct
   - eg wills inconsistent with survivorship
5. by forfeiture
   - if you kill other joint tenant cannot take share

Question 4

How can a buyer take land free from beneficial interest that are under trust?

Answer 4

Overreaching
- purchase money to be paid to all trustees
- must be paid to at least 2 trustees or one trust corporation

This transfers the beneficiaries interest from land into purchase money

Question 5

How can overreaching be achieved if there is only one legal owner?

Answer 5

Must ensure second trustee is appointed

OR

buyer may obtain written release form beneficiary of their rights by having them sign contract prior to exchange

Question 6

What must a solicitor do if they are acting on the sale of land that is subject to beneficiaries holding beneficial interests?

Answer 6

Duty to consult and take into account the wishes of beneficiaries
- at least a majority of them

Question 7

What can be done in case of disagreement between co-owners

Answer 7

Trust of Land & Appointment of Trustees Act

1. Anyone with interest in land can apply
2. Court can
   - order to sell
   - order to relieve trustees of duty to obtain beneficiaries consent
   - to relieve trustees to duty to consult beneficiaries
   - declare the nature and extent of a persons interest in property
3. Court has regard to:
   - intention of the person(s) who created trust
   - purpose for which property subject to trust was held
   - welfare of any minor who occupies or might reasonably be expected to occupy trust land as their home
   - interest of any secured creditor of any beneficiary

Question 8

When might a trust of land be created though trusts (Trusts of Land Topic)

Answer 8

Presumption of Resulting Trust

1. Contribution to purchase price or transfer land (no indication it is gift)
   - NO PRESUMPTION if father/child, husband/fiancé, single mother/child
2. Voluntary Transfer of land (no indication it is gift)

Common intention

3. Common Intention Constructive Trust (if not married)
   - express or inferred common intention
   - reliance to your detriment
4. Proprietary Estoppel
   - give assurance and relied on this to their detriment