co-ownership

Question 1

what are the two types of co-ownership?

Answer 1

joint tenancy and tenancy in common

Question 2

what is joint tenancy?

Answer 2

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

Question 3

what is tenancy in common?

Answer 3

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

Question 4

what have to present for a joint tenancy to exist?

Answer 4

the four unities

Question 5

what are the four unities?

Answer 5

unity of possession
unity of interest
unity of title
unity of time

Question 6

what is meant by unity of possession>

Answer 6

co-owners must enjoy an entitlement to possess the whole of the co-owned land

Question 7

what is meant by unity of interest?

Answer 7

co-owners must hold the same, identical interest in the land

Question 8

what is meant by unity of title?

Answer 8

co-owners must acquire their identical interests from the same, act, transaction or same document

Question 9

what is meant by unity of time?

Answer 9

co-owners must have all acquired their interest at the same time

Question 10

what is a key feature of joint tenancy?

Answer 10

doctrine of survivorship - when one tenant dies their interest automatically passes to the remaining joint tenants
this takes precedence over terms of their will

Question 11

how can joint tenants separate their interests?

Answer 11

through severance

Question 12

what happens in severance?

Answer 12

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

Question 13

what form of co-ownership can exist at law

Answer 13

joint tenancy only - s1(6) LPA 1925

Question 14

what form of co-ownership can exist in equity?

Answer 14

joint tenancy or tenants in common

Question 15

what are the ways to tell whether co-owners are joint tenants or tenants in common?

Answer 15

• any express declarations of trust
• the presence of the four unities
• application of various equitable presumptions

Question 16

what are the methods of severance?

Answer 16

• 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

Question 17

how does severance by written notice work?

Answer 17

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

Question 18

how does severance by joint tenant operating on own share work?

Answer 18

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

Question 19

how does severance by mutual agreement work

Answer 19

collective
all joint tenants agree to sever

Question 20

how does severance by mutual course of dealings work?

Answer 20

consensus between tenants
disclosed by a pattern of dealings with the co-owned property, which excludes future operation of survivorship

Question 21

how does severance by operation of law work?

Answer 21

where one tenant is responsible for the unlawful killing of another they will not benefit from the death
doctrine of survivorship will not operate