Co-ownership Flashcards
How is a legal estate in land held?
The legal estate is ALWAYS held as a joint tenancy.
The joint tenancy of the legal estate cannot be severed and the rights of survivorship apply. If one JT dies the other takes their interest.
How many trustees of land can there be?
4 - the first 4 on the trust deed.
They must be over 18.
What are the characteristics of tenants in common?
The law treats tenants as having distinct ‘undivided shares’.
The rules of survivorship don’t apply.
When TiC sell they get a share proportionate to their chunk of land.
What are the four unities of joint tenancy?
Interest, title, time and possession.
If all four are present there is a JT.
When would Equity presume a tenancy in common?
When the property is acquired for business use.
When there are unequal contributions to the purchase price.
If one person lends more money than the other.
What is the effect of words of severance in the trust declaration?
The words should be followed if they are sufficiently clear.
For example
‘half to A and half to B’
or
‘to A and B in equal shares’’
are clear words of severance so the equitable interest will be held as TiC.
What is the result of an express declaration of JT or TiC
If the express declaration is sufficiently clear it must be followed.
How may an equitable interest held under a joint tenancy be severed?
By written notice.
Mutual agreement
bankruptcy / murder
Conduct
What are the rules for severing an interest by notice?
Must be written - no need to be signed.
The appropriate wording must be used. The intention must be for the interest to be severed immediately.
The notice must be received by all.
If the notice is sent by registered or recorded letter it is deemed to be served if the letter is not returned undelivered (even if the letter is received by the person who sent it)
What is the two stage test for a constructive trust as set out in Lloyds Bank v Rosset?
Agreement and Detrimental reliance
or
conduct and direct financial contribution
What can be considered as acting to a person’s detriment in the context of a constructive trust.
Paying for household improvements.
Paying for all household bills.
Working unpaid in the legal owner’s business.
What is the test for a constructive trust from Jones v Kernott?
Was it intended that the non-owning parting have any beneficial interest
If so can be parties common intention be deduced from their conduct
there is no presumption of joint beneficial ownership
the court should consider what is fair having regards to the facts.
What is the purpose of s14 and s15 TLATA 1996
To settle disputes between co-owners of land.
Under s14 any person with an interest in the land can make an application.
Under s15 the court will take into account
- the intentions of the person who created the trust
- the purpose of the trust
- the welfare of any minor
The court can then decide to
- refuse a sale
- order a sale
- refuse a sale but make an order regarding the right to occupy the property
- partition the co-owned property.
