Co-Ownership Flashcards
The four unities
Possession
Interest
Title
Time
The right of survivorship
Where there is a joint tenancy the right of survivorship applied meaning on the death of one joint tenant their interest will vest in the remaining joint tenants
Exceptions to the right of survivorship
If all joint tenants die together the youngest is presumed to die last
A joint tenant who kills another joint tenant cannot take the equity
Re K [1986]
A wife accidentally killed her husband whilst threatening him with a shot gun. The wife did not take by survivorship
Co-Ownership at law
Under ss1(6) and 34(1) Law of Property Act 1925 at law you can only have a joint tenancy.
This makes a sale easier.
A maximum of 4 people can hold the property as joint tenants at law
Severance can only occur in equity
Presumption of how property is held
If all 4 unities are satisfied and there is no express declaration and all parties contributed equally then joint tenancy is presumed
If there is unequal shares and it’s not the family him and there is not a personal relationship between the parties then tenancy in common is presumed in shares proportionate to the sims paid
Severance of joint tenancy
Severance must be given by written notice either by hand delivery or posted and can be sent to the last know address.
Destruction of the four unities
Mutual agreement
Kinch v Bullard [1998]
The home was owned by husband and wife as joint tenants. Following a divorce the wife sent by post severance the husband fell ill and went to hospital and the wife destroyed the letter the husband died and severance was effected
Destruction of the four unities
Sale
Contract to sell
Fraudulent sale
Mortgage
Merger
Homicide
Bankruptcy
Termination of co-ownership
Sale
Partition
Union in a sole owner
Partition
Physical division of a property and destroys unity of possession
The Law of Property (joint tenants) Act 1964
In unregistered land there may be no way to see if there was a severance. LP(JT)A 1964 provides the survivor of two or more joint tenants be deemed to be solely and beneficially interested.
Exceptions to Law of Property (Joint Tenants) Act 1964
A memorandum of severance has been endorsed or annexes to the conveyance
The land is registered
There is a bankruptcy order or petition against any of the joint tenants
Resulting trust one person on the title
Arises where the legal estate is in the name of one or more persons but the purchase money was provided by someone who was not on the legal title
Bull v Bull [1955]
A mother contributed to the purchase price of the house in her sons sole name. There was a disagreement and the mother was granted a share based on her contribution
Re Sharpe [1980]
Any presumption that a trust arises can be rebutted by showing that the contribution was a loan or a gift
Advancement
A historical concept where men were seen as providers for women. The property was purchased by the husband and put into the name of the wife and this was seen as a gift and the presumption of trust was rebutted
Wood v Watkin [2019]
The view that the presumption of advancement should be restricted to minor children was rejected
The presumption was not further limited to children who were financially dependent on their parents
The courts also rejected that submission that the presumption of advancement was very weak in modern times
S199 Equality Act 2010 will abolish advancement
Extent of beneficial interest in resulting trust
In a resulting trust the parties will take their percentage share based on what they contributed to the purchase price and mortgage payments
Express agreement constructive trust
There must have been an express agreement or express common intention that the property is to be shared beneficially
Eves v Eves [1975]
An unmarried couple where the man told the women if she had been 21 then the house would have been put in joint names
Grant v Edwards [1986]
The couple were not married and the man told the women she was not on the title so it did not prejudice her matrimonial proceedings
Implied agreement constructive trust
The court may be prepared to infer a common intention from the conduct of the parties. The non legal owner must then show detriment in reliance on the intention
Gissing v Gissing [1971]
The House of Lords held that indirect financial contributions by a wife over 25 years did not show this common intention. Her contributions took the form of general household contributions
Thomas v Fuller-Brown [1988]
A house was purchased solely in the woman’s name and paid for by her. The man living with her did not contribute to the household expenses but when the woman obtained a home improvement grant it was agreed that he would do the work in return for his keep. When the relationship broke down the man sought a declaration of trust. No intention was inferred
Stack v Dowden [2007]
There were 2 parties on the legal title. The issue was of quantification. There was no express declaration of trust. The House of Lords held that there was a presumption of joint tenancy. Ms Dowden proved a contrary intention in that she had contributed far more to the purchase price and the finances of the couple were kept strictly separate. She was awarded a 65% share of the property
Jones v Kernott [2011]
A couple purchased a house with no express declaration of trust. In 1993 Mr Kernott moved out and stopped contributing to the mortgage. The presumption is a 50:50 split unless
The parties intended a different share
Later in the relationship they formed a common intention that the shares would change.
Mrs Jones was awarded a share of 90%
Resulting Trusts were 2 people are on the title
Where two people purchase a let to buy and contributed unequally and there is no express declaration of trust the presumption is tenants in common with shares as to the proportion contributed
Laskar v Laskar [2008]
A property had been bought by mother and daughter in unequal contributions to rent out. The court used the resulting trust principles rather than the presumption joint tenancy
Protection of interest in unregistered land
Constructive and resulting trusts are not registrable as land charges so they will need to be protected by overreaching
Protection of the interest in registered land
It must be protected by entry on the register.
