co-ownership Flashcards
what are the two types of co-ownership?
joint tenancy and tenancy in common
what is joint tenancy?
only kind of legal co-ownership
each owns the whole thing collectively, no shares of the land
all trustees jointly and severally liable together
survivorship - heirs will get nothing as there is nothing to pass on
what is tenancy in common?
cannot exist at law
tenant in entitled to a notional or undivided share in the land
size of share usually equals the size of the contribution to the purchase
no physical division of the land - undivided shares
no survivorship - if one dies then their shares pass according to their will
only unity of possession needs to be present
what have to present for a joint tenancy to exist?
the four unities
what are the four unities?
unity of possession
unity of interest
unity of title
unity of time
what is meant by unity of possession>
co-owners must enjoy an entitlement to possess the whole of the co-owned land
what is meant by unity of interest?
co-owners must hold the same, identical interest in the land
what is meant by unity of title?
co-owners must acquire their identical interests from the same, act, transaction or same document
what is meant by unity of time?
co-owners must have all acquired their interest at the same time
what is a key feature of joint tenancy?
doctrine of survivorship - when one tenant dies their interest automatically passes to the remaining joint tenants
this takes precedence over terms of their will
how can joint tenants separate their interests?
through severance
what happens in severance?
their interest is transformed into a notional share and that co-owner becomes a tenant in common
the size of the share is calculated as a proportion of total number of co-owners
doctrine of survivorship no longer applies after severance
what form of co-ownership can exist at law
joint tenancy only - s1(6) LPA 1925
what form of co-ownership can exist in equity?
joint tenancy or tenants in common
what are the ways to tell whether co-owners are joint tenants or tenants in common?
- any express declarations of trust
- the presence of the four unities
- application of various equitable presumptions
what are the methods of severance?
- by written notice
- joint tenant operating on her own share
- severance by mutual agreement
- severance by mutual course of dealings
- severance by operation of law
how does severance by written notice work?
s36(2) LPA 1925
- don’t need consent from other co-owners
- joint tenant must make desire to sever clear in a written notice and serve that notice on all other joint tenants
how does severance by joint tenant operating on own share work?
the tenant acts as if they were entitled to a share
- transfers share to a third party
- transfers share to another joint tenant
- mortgages interest
- commences legal proceedings against other joint tenant’s
bankruptcy
how does severance by mutual agreement work
collective
all joint tenants agree to sever
how does severance by mutual course of dealings work?
consensus between tenants
disclosed by a pattern of dealings with the co-owned property, which excludes future operation of survivorship
how does severance by operation of law work?
where one tenant is responsible for the unlawful killing of another they will not benefit from the death
doctrine of survivorship will not operate
