Co ownership

Question 1

When is a trust of land imposed?

Answer 1

Whenever land jointly owned

Question 2

What is the effect of the imposition of a trust of land?

Answer 2

Separates legal and equitable title

Question 3

What are the formalities for an express trust of land?

Answer 3

• Evidenced in writing
• Signed by declarants

Question 4

What are the formalities for an implied trust of land?

Answer 4

None

Question 5

What are the types of implied trusts of land?

Answer 5

• Resulting trust: where non legal owner contributed to purchase price
• Constructive trust: Unconscionability

Question 6

What are the types of co-ownership?

Answer 6

Joint tenancy
Tenancy in common

Question 7

Which unities must joint tenancies have?

Answer 7

Possession
Title
Interest
Time

Question 8

Which unities must tenancies in common have?

Answer 8

Possession (may have others)

Question 9

Which type of tenancy does the right to survivorship apply?

Answer 9

Joint tenancies

Question 10

What are the four unities?

Answer 10

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

Question 11

What are the rules that keep the legal title of co-ownership simple?

Answer 11

• Max four legal owners
• Of full age and sound mind
• Legal title holders must hold as joint tenants

Question 12

Can a legal joint title be severed?

Answer 12

No

Question 13

Where there is no express declaration that land is held as tenants in common, can it still be?

Answer 13

Words like held in equal shares may indicate

Question 14

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?

Answer 14

o Land is a business asset
o Purchase price of non-domestic property paid in unequal shares

Question 15

When must severance take place?

Answer 15

During the joint tenant’s lifetime

Question 16

What is the effect of severance?

Answer 16

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

Question 17

How can severance take place?

Answer 17

• Notice in writing to all other equitable joint tenants
• Other acts or things

Question 18

What is the form and intention for notice of severance?

Answer 18

Unequivocal and irrevocable intention to sever the equitable joint tenancy immediately

Question 19

What are the rules on service of a notice of severance by posting?

Answer 19

• 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

Question 20

What are the other acts and things for service of severance of joint tenancy?

Answer 20

Unilateral act
Mutual agreement
Course of dealing

Question 21

What are the unilateral acts for service of severance?

Answer 21

Total alienation: severing owner disposes of interest by sale/gift
Partial alienation: severing owner temporarily disposes by mortgage/lease
Involuntary alienation: declared bankrupt

Question 22

Who may apply to court for an order relating to land?

Answer 22

Anyone with an interest

Question 23

Can the court order a beneficiary to buy out another?

Answer 23

No

Question 24

What orders may the court make for disputes relating to co-owned land?

Answer 24

• Order for sale
• Order who occupies
• Order on nature/extent of beneficiary’s interest

Question 25

What are the factors that a court must consider regarding disputes relating to co-owned land?

Answer 25

• 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