Co Ownership

Question 1

What are the two forms of co ownership?

Answer 1

Joint Tenancy and Tenants in Common

Question 2

What are the fundamental differences in ownership between a Joint Tenancy and Tenants in Common?

Answer 2

1) Four unities for JT, only unity of possession for TC
2) right of survivorship in JT, interest passed to those entitles for TC
3) All tenants in a joint tenancy hold 100% of the property and their interest dies with them, land in a TC is held in undivided shares (of ownership rights/ control) which may be unequal

Question 3

What are the 4 essentials required for a joint tenancy to exist?

Answer 3

1) Unity of Possession
All JTs must possess the land equally and each co owner is entitled to possession of the whole premises
2) Unity of Interest
Same interest in the land in the same estate nature, extent, and time. One cannot hold a fee simple and another a leasehold
3) Unity of Title
Must take by the same title (deed, will etc) in a single transaction in the same act
4) Unity of Time
Must take vested interest at the same time, all interests and rights of the JTs must arise at the same time

Question 4

What is the right of survivorship?

Answer 4

• Fundamental aspect of a joint tenancy
• when one joint tenant dies his shares passes on to the surviving joint owners and so on until the last surviving joint tenant takes as sole owner
• joint tenant’s interest in the land ends when they die
• all joint tenants hold 100% of the property
• corporate bodies are permitted to hold property as joint tenants - s. 32 2009 Act

Question 5

What is commorientes?

Answer 5

• when the remaining joint tenants die simultaneously the old common law provision required those claiming the estate to prove through a forensic factual account that the one whose estate they claimed survived the other. Wide spread presumption was that the eldest died first

Bradshaw v Toumlin
- if two persons being joint tenants perish by one blow the state will remain in joint tenancy in their respective heirs

• s.5 Succession Act 1965 held that they died simultaneously. This was considered unsatisfactory as it provided no guidance as to how allocation of assets to heirs could occur
• Amended by Civil Law (Miscellaneous Provisions) Act 2008 so that now a simultaneous death produces a severance into apportioned interest and an equal allocation amongst heirs and assigns of the deceased’s now separate interests
• ie they are held to have held the property immediately before their death as tenants in common in equal shares

Question 6

How is a joint tenancy created?

Answer 6

• If all 4 unities are present and survivorship operates there is a Joint Tenancy
• common law prefers and will presume a joint tenancy
• To ensure equity recognised JT expressly state the fact eg. to X in Joint Tenancy

Question 7

How are shares in a tenancy in common divided and how do they pass?

Answer 7

• Land is held in undivided shares.
• each tenant has a claim to their share which will not be destroyed in death
• shares are identifiable and may be unequal

Question 8

How is the presumption in common law of a Joint Tenancy avoided?

Answer 8

• ensure one of the unities are not present
• use words of severance such as ‘ to share and to share alike; in equal shares; between; respectively’
• overiding principle is the intention of the parties so even with this language a JT may arise

Question 9

Why is there a presumption in common law of a Joint Tenancy?

Answer 9

Common law recognises the benefits of co ownership but prefers sole ownership due to feudalistic ideas and so the best use of the land may be used without waiting for consent etc.

Question 10

Why is there a presumption in equity against a Joint Tenancy?

Answer 10

• a persons effort and labour are not necessarily rewarded with an inheritable interest
• may be tolerable in private relations, not tolerable in commercial relations, where unequal amounts of purchase money were advanced etc

Question 11

Name four ways in which equity will presume against a joint tenancy.

Answer 11

1) Unequal advancement of Purchase Money
O’Connell v Harrison
- where at the outset of a joint venture or purchase the intending joint owners offer or advance differing sums of money there is no joint tenancy.
- a tenancy in common is found in proportion to their advancing of purchase money

2) Evidence of Partnership or Commercial Arrangements
- Equity generally considers commercial co owners as TIC even where no formal commercial relationship exists between the parties
- even in a partnership where the legal estate is vested in partners in a JT equity presumes the assets are held between them in a TIC
Reilly v Walsh
- two brothers purchased a commercial property but relationship was still personal due to circumstances so JT

3) Existence of co-mortgagees
where two people lent money then even if the legal interest mortgaged to them was a joint tenancy equity presumes a tenancy in common

4) Intention of parties
- catch all ground, equity can invoke grounds of fairness and the justice in a particular case

Question 12

what are the rights of co owners?

Answer 12

Right of possession
Right to rent and profits from the land
Right to alienate the land

Question 13

What is the first right of possession?

Answer 13

1) Right to possession
- Each co owner has a right to possession of the premises as a whole, if a co owner evicts another they are liable for trespass

Bull v Bull
Where there are two owners, until the property is sold, both are entitled to concurrent possession and enjoyment of the land in a proper manner and neither can turn the other out

Denis v McDonald
- A tenant in common is not liable to pau occupational rent by mere fact that they are the sole occupant UNLESS the relationship has broken down and one party is excluded from the home
- ie. if there has been a constructive ouster by the occupant tenant then in order to do equity between the parties occupational rent should be paid

Question 14

What is the right to rent and profits from the land?

Answer 14

2) Right to rent and profits
- JTs equal shares
- TIC share or rent proportional to their share in ownership
- any owner who takes more than their fair share is liable to return

Jones v Jones
One tenant in common/ joint tenant cannot claim rent from another unless they have been ousted from possession

Question 15

What is the right to alienate land?

Answer 15

3) Right to alienate the land
- Every individual owner may alienate his ownership
- JT results in severance
- TIC purchaser steps into co ownership relationship

Question 16

How can a joint tenancy be severed at common law?

Answer 16

Result is to change the co owned interest into one of a tenancy in common
1) Alienation (Sale) by a Joint tenant
- produces a tenancy in common for the purchaser with the remaining joint tenants who continue to have a joint tenancy
- LRC recommended consent be required to restrain such severance but this can be dispensed with by order of the court

2) Acquisition of another interest
- destroys unity of interest
- same effect and consent required as for a sale

3) An act of a third party exercising statutory powers
- most common through judgement mortgages, now no longer possible post 2009

Question 17

How can a joint tenancy be severed in equity?

Answer 17

Equity is willing to grant an order severing a joint tenancy where there is a determined effort to sever by the party and it is only formalities that are preventing the severance

1) Giving effect to the mutual interests of the parties

2) Course of a dealing
- where the tenants seem to have treated their interest as severed over a substantial period of time

3) Joint tenant acting upon his own share
- where a joint tenant enters into a contract to transfer his share to a third party who has paid over part of the purchase price but the contract is not completed (s 52(1))

Question 18

How can co ownership interests be terminated?

Answer 18

1) Termination by Partition or Sale
- partition involves physically dividing the property which can be done by voluntary agreement of all co owners under a deed, or by order of the court on application of any interest party s. 30 and s. 31(2)(f)

2) Termination by union in a sole owner
- survivorship in JT
- TIC one co owner may buy the others out
- s.30 joint tenants may consent to release their interest