Co - Ownership

Question 1

What is concurrent co-ownership?

Answer 1

Concurrent co-ownership arises where two or more people together own the same estate (freehold or leasehold) in the same piece of land at the same time.

Question 2

What governs the law of co-ownership?

Answer 2

The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996) governs the law of co-ownership.

Question 3

When did TOLATA 1996 come into effect?

Answer 3

TOLATA 1996 came into effect on 1 January 1997.

Question 4

What happens when land is owned jointly under TOLATA 1996?

Answer 4

Whenever land is owned jointly, a trust of land is imposed, separating the legal title held by trustees from the equitable title held by beneficiaries.

Question 5

What is the distinction between legal and equitable title?

Answer 5

Legal title is held by the trustees and involves powers and duties of management, while equitable title is held by the beneficiaries, who are the ‘true’ owners of the property.

Question 6

What are express trusts?

Answer 6

Express trusts are trusts of land created expressly, requiring formalities such as being evidenced in writing and signed by the declarant(s).

Question 7

What is the relevant legislation for express trusts?

Answer 7

Legislation: LPA 1925, s 53(1)(b): a declaration of trust respecting any land must be manifested and proved by writing signed by the declarant(s).

Question 8

What are implied trusts?

Answer 8

Implied trusts arise informally without any writing, and there are no formalities for their creation.

Question 9

What is a resulting trust?

Answer 9

A resulting trust may be implied when a property is bought in one person’s name but another makes a financial contribution.

Question 10

What is a constructive trust?

Answer 10

Constructive trusts arise in cases where it is unconscionable for the legal owner to deny the interest of another person.

Question 11

What is the common feature of co-owned land?

Answer 11

All co-owners are simultaneously entitled to possession of the land, known as unity of possession.

Question 12

What are the four unities in legal title?

Answer 12

The four unities are: 1) Unity of possession, 2) Unity of interest, 3) Unity of title, 4) Unity of time.

Question 13

What is severance?

Answer 13

Severance is the process of separating off the share of a joint tenant, changing the basis on which the equitable co-owners hold the equitable title.

Question 14

What does LA 1925, s 36(2) state about severance?

Answer 14

LA 1925, s 36(2) states that it is not possible to sever a legal joint tenancy; only an equitable one can be severed.

Question 15

How can severance of an equitable joint tenancy occur?

Answer 15

Severance can occur by notice in writing or by ‘other acts or things’.

Question 16

What is required for a notice to sever a joint tenancy?

Answer 16

The notice must demonstrate an unequivocal and irrevocable intention to sever the equitable joint tenancy immediately.

Question 17

What is the significance of mutual conduct in severance?

Answer 17

Mutual conduct may indicate that the interests of all parties are treated as constituting a tenancy in common.

Question 18

What does TLATA 1996, s 14 provide?

Answer 18

TLATA 1996, s 14 gives courts jurisdiction to hear applications regarding disputes involving co-owned land.

Question 19

What does TLATA 1996 govern?

Answer 19

TLATA 1996 governs the operation of trusts of land and the resolution of disputes related to land held in trust.

Question 20

Who can apply to the court under TLATA 1996, s 14?

Answer 20

Any person who is a trustee of land or has an interest in property subject to a trust of land may apply for an order.

Question 21

What types of applicants can make an application under TLATA 1996, s 14?

Answer 21

Applicants can include trustees, beneficiaries, mortgagees, trustees in bankruptcy, and holders of charging orders.

Question 22

What orders can the court make under TLATA 1996, s 14?

Answer 22

The court may order actions such as sale or occupation but cannot order one beneficiary to buy out another.

Question 23

What factors must the court consider under TLATA 1996, s 15?

Answer 23

The court must consider the intentions of the trust creators, the purposes of the property, the welfare of minors, and the interests of secured creditors.

Question 24

What does s 15(1)(a) focus on?

Answer 24

It focuses on the intentions of the person or persons who created the trust.

Question 25

What does s 15(1)(b) require the court to consider?

Answer 25

It requires the court to consider the purposes for which the property subject to the trust is held.

Question 26

How does the court view the welfare of minors under s 15(1)(c)?

Answer 26

The court considers the welfare of minors occupying the land, weighing their interests heavily, especially for younger children.

Question 27

What has changed regarding creditors’ interests under s 15(1)(d)?

Answer 27

Post-TLATA 1996, creditors’ interests are just one factor among many, with no presumption for or against a sale.

Question 28

What does s 15(3) state about beneficiaries of full age?

Answer 28

The court must consider the circumstances and wishes of beneficiaries over 18, giving weight to the majority in case of disputes.

Question 29

What is the usual form of order requested under TLATA 1996?

Answer 29

The usual form of order requested is an order for sale of the property, which can be postponed.

Question 30

What should the court weigh in its decision-making process?

Answer 30

The court should weigh the purpose for which the land was bought, the interests of minors, the interests of secured creditors, and the wishes of beneficiaries.

Question 31

What trend has been observed regarding creditors’ interests in practice?

Answer 31

Greater weight tends to be given to the interests of creditors, especially in cases of significant debt or sufficient equity.