Co-Ownership Flashcards
What are the two forms of co-ownership?
Joint tenants; and
Tenants in Common
When is a trust of land created?
- Landowner intentionally sets up a trust;
- Someone acquires an interest due to another’s conduct;
- land is acquired by more than one owner jointly
What is the minimum and maximum number of co-owners?
Minimum - 2;
Maximum - 4
What is the right of survivorship? (JT only)
When one JT dies, their interest is absorbed by the rest of the JTs.
The last JT surviving is free to deal with the property as they wish.
What are the four unities and what do they help prove?
(i) Unity of possession - each co-owner has a right to possess the land;
(ii) Unity of interest - each co-owner has identical rights over the land;
(iii) Unity of title - each co-owner acquired their interest from the same document;
(iv) Unity of time - the co-owners receive their interests at the same time
This helps prove a JT, the absence of any could indicate a TIC.
What’s the effect of an express declaration?
Provided the four unities are present, an express declaration is conclusive in determining a JT.
What is ‘severance’?
Effectively where a JT is severed at equity through express words suggesting distinct individual shares, for example.
When does equity presume a TIC?
When the property is acquired for business use;
Unequal contributions to the purchase price of a non-residential property;
Post-acquisition money management (e.g. if one co-owner paid more of the mortgage).
How can severance be formally effected in equity?
Written notice:
One JT expresses a desire to sever immediately and has delivered the notice to all other JT’s (doesn’t have to be read, just needs to be delivered)
How can severance be informally effected in equity?
(i) Unilateral act dealing with a ‘share’ of the property, e.g. a JT sells their half;
(ii) severance by mutual agreement, e.g. one JT sells their interest to another
(iii) severance by mutual conduct - no express agreement, but parties show they regard themselves as owning separate shares.
When does a resulting trust in land arise?
- A person makes a contribution to the purchase price;
- no evidence it was intended as a gift or a loan; and
- contribution must be all of or part of the purchase price at the date of acquisition
The property interest is proportionate to the contribution made
What is the purpose of s14 and 15 TOLATA?
Settles disputes regarding co-owned land.
Such disputes could be size of interests, whether the land should be sold, occupation of the land etc.
What are the court’s powers under s14 TOLATA?
Wide discretion to make an order:
(a) relating to the exercise by the trustees of any of their functions; or
(b) declaring the nature or extent of a person’s interest in the property.
What factors are relevant in S15 TOLATA when settling disputes?
(a) intentions of the person who created the trust;
(b) purposes for which the property subject to the trust is held;
(c) the welfare of any minor who occupies the home; and
(d) interests of any secured creditor of any beneficiary.
All interests rank equally, but in practice creditor’s interests will often rank more highly.
