Co-ownership Flashcards
When is a rebuttable presumption of a tenancy in common created?
If there is no express wording and the land is a business asset or the purchase price of a non-domestic property has been paid in unequal shares.
Can a joint tenancy be severed through a will?
No - must be done in the joint tenant’s lifetime.
What is the effect of severance?
Equitable title is held as tenants in common on the basis of the number of former joint tenants.
What are the requirements of a notice in writing to sever a joint tenancy?
It must demonstrate an unequivocal and irrevocable intention to sever the equitable joint tenancy immediately.
How must a notice of severance in writing be served?
It must be given to all of the other tenants.
What are the three methods of severance by other acts or things?
- A unilateral act by a joint tenant operating on his own share.
- Mutual agreement of joint tenants.
- Any course of dealing which indicates that the interests were mutually treated as being a TIC.
What are the three ways in which severance can occur by a unilateral act by a JT operating on his own share?
- Total alienation - the owner disposed of their interest permanently e.g. one tenant ‘buys out’ the other.
- Partial alienation - temporary disposal of the equitable interest e.g. by mortgage.
- Involuntary alienation - the JT is declared bankrupt.
What is severance by mutual agreement of JTs?
When all equitable JTs agree that one person’s interest is severed.
What is severance by any course of dealing which indicates that the interests were being mutually treated as being TICs?
Any course of dealing sufficient to intimate that interests of all were sufficient to equal tenants in common. May be where they have not reached mutual agreement but have been negotiating for a long time in terms which demonstrate they recognise mutual interests.
Under TLATA, what should the trustees do if beneficiaries have conflicting wishes?
They should give effect to the wishes of the majority of beneficiaries by value of interest.
Who can apply to the court for an order relating to co-owned land under TLATA?
Anyone with an interest in the land - trustees, beneficiaries, mortgagees of the legal or equitable title.
What orders might the court make relating to co-owned land under TLATA?
Orders for sale, orders for who occupied, orders as to the nature/extent of the beneficiaries interest. Cannot order one beneficiary to buy out the other.
What factors must a court consider when dealing with applications under TLATA?
- The intentions of those who created the trust.
- The purposes for which the land subject to the trust is held.
- The welfare of any minor who occupies/might reasonably be expected to occupy the land as his home.
- The interests of the secured creditor of any beneficiary.
- The circumstances and wishes of any beneficiaries of full age, or the majority according to the value of interest.
What are the 5 criteria for the principal private dwelling house exemption to apply to capital gains from selling a property?
- You have one home which you have lived in as your main home all the time you have owned it.
- You have not let out any part of it.
- You have not used it/a part of it for business only.
- The grounds are less than 5000sqm in total.
- You did not buy it just to make a gain.
What should be disregarded when considering a property was lived in as a person’s main home during ownership? (For the purposes of the principal private dwelling house exemption)
- Last 9 months of ownership.
- First 12 months of ownership.
- Any period where the owner worked outside of the UK.
- Any period under 3 years in total.
- Any period of under 4 years where the owner had to work elsewhere in the UK.
