Co-Ownership

Question 1

When Land is Co-Owned, what occurs automatically?

Answer 1

A Trust is imposed on the Land, separating the Legal and Beneficial Title therein.

Trusts of Land and Appointment of Trustees Act (TOLATA) 1996 —s. 1.

Question 2

What are the Two Types of Co-Ownership?

Answer 2

Joint Tenancy (“JT”):

• All Co-Owners are deemed to constitute a single entity and to own the whole Property as one entity.
• Survivorship applies.

Tenancy In Common (“TIC”):

• Each Co-Owner is deemed to have a distinct, undivided share in the Land.
• Survivorship disapplies.

Question 3

What are the Four Unities?

Answer 3

• Title: Each Co-Owner acquires their Title from the same source.
• Time: Each Co-Owner’s interest vests at the same time as the others.
• Interest: Each Co-Owner’s interest in the Land is the same in nature and duration as the others.
• Possession: Each Co-Owner is as much entitled to the same degree of possession of the Land as the others.

Question 4

What are the Requirements for Co-Owning Legal Title?

Answer 4

• It must be held in Joint Tenancy.
• The Four Unities must be present.
• There can be no more than four Joint Tenants.
• Each Tenant must be of full age and sound mind.

Trustee Act 1925 — s. 34(2) | LPA 1925, ss. 1(6), 22.

None of these requirements apply for Co-Ownership of Beneficial Title, barring the Unity of Possession.

Question 5

What is Severance?

Answer 5

• The act of converting an Equitable Interest held in Joint Tenancy into one held in Tenancy in Common; where
• Each Tenant comes to hold an equal share, regardless of initial contribution.

This is usually done to disapply Survivorship.

Question 6

How may an Equitable Joint Tenant Sever their Tenancy?

Answer 6

The Equitable Joint Tenant must:

• While alive;
• Serve the all other Tenants written notice, showing an unequivocal and irrevocable intention to immediately sever the Tenancy; or
• Perform actions befitting Serverance, including:
  • Mutual conduct;
  • Unilateral action; or
  • Mutual agreement.

LPA 1925 — s. 36(2).

If notice is posted, it will be deemed to be served if it has been left at the last known place of abode or business of the Joint Tenants.

Mutual Conduct or Agreement must amount to a consensus among all Tenants that one Tenant’s interest is separate or severed.

Question 7

Which Unilateral Actions befit Severence?

Answer 7

Involuntary Alienation:

• The Tenant is declared Bankrupt.

Partial Alienation:

• The Tenant temporarily disposes of the interest, by way of Lease or Mortgage.

Total Alienation:

• The Tenant permanently disposes of the interest, by way of sale or gift of the interest.

Question 8

In a dispute between Co-Owners, which Factors must the Court consider?

Answer 8

• The intentions of the Trust’s creators;
• The circumstances and wishes of any Beneficiary of full age;
• The interests of any Secured Creditor of any Beneficary;
• The purposes for which the Trust Property is held and whether it is continuing; and
• The welfare of any minor who occupies, or may reasonably be expected to occupy, the Trust Property as their home.

TOTALA 1996 — s. 15(1).

Question 9

Can a Court order a Buy-Out of a Co-Owner?

Answer 9

No.