Co ownership Flashcards
When is a trust of land imposed?
Whenever land jointly owned
What is the effect of the imposition of a trust of land?
Separates legal and equitable title
What are the formalities for an express trust of land?
- Evidenced in writing
- Signed by declarants
What are the formalities for an implied trust of land?
None
What are the types of implied trusts of land?
- Resulting trust: where non legal owner contributed to purchase price
- Constructive trust: Unconscionability
What are the types of co-ownership?
Joint tenancy
Tenancy in common
Which unities must joint tenancies have?
Possession
Title
Interest
Time
Which unities must tenancies in common have?
Possession (may have others)
Which type of tenancy does the right to survivorship apply?
Joint tenancies
What are the four unities?
Possession: each owner entitled to possess any part
Title: acquire title from same document
Interest: same nature and duration
Time: vest at the same time
What are the rules that keep the legal title of co-ownership simple?
- Max four legal owners
- Of full age and sound mind
- Legal title holders must hold as joint tenants
Can a legal joint title be severed?
No
Where there is no express declaration that land is held as tenants in common, can it still be?
Words like held in equal shares may indicate
Where there is no express declaration that land is held as tenants in common, the land will be held as joint tenants unless the rebuttable presumption of tenants in common applies. What is the rebuttable presumption?
o Land is a business asset
o Purchase price of non-domestic property paid in unequal shares
When must severance take place?
During the joint tenant’s lifetime
What is the effect of severance?
hold tenancy in common in equal shares based on number of former joint tenants (not contributions)
Only affects instigator, other JTs will hold equitable title as JTs
How can severance take place?
- Notice in writing to all other equitable joint tenants
- Other acts or things
What is the form and intention for notice of severance?
Unequivocal and irrevocable intention to sever the equitable joint tenancy immediately
What are the rules on service of a notice of severance by posting?
- Deemed served if left at last known place of abode or business
- If not returned undelivered, deemed served at time a registered item would in ordinary course of events being delivered
What are the other acts and things for service of severance of joint tenancy?
Unilateral act
Mutual agreement
Course of dealing
What are the unilateral acts for service of severance?
Total alienation: severing owner disposes of interest by sale/gift
Partial alienation: severing owner temporarily disposes by mortgage/lease
Involuntary alienation: declared bankrupt
Who may apply to court for an order relating to land?
Anyone with an interest
Can the court order a beneficiary to buy out another?
No
What orders may the court make for disputes relating to co-owned land?
- Order for sale
- Order who occupies
- Order on nature/extent of beneficiary’s interest
What are the factors that a court must consider regarding disputes relating to co-owned land?
- Intentions of person who created trust
- Purpose property subject to trust is held
- Welfare of minor occupier/might reasonably be expected to occupy as home
- Interests of secured creditor of any beneficiary
- Circumstances and wishes of beneficiaries of full age or the majority
