co-ownership

Question 1

what is concurrent co-ownership?

Answer 1

when 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 formalities must be complied with in order to create an express trust of land?

Answer 2

The declaration of trust must be evidenced in writing signed by the person creating the trust.

Question 3

A couple (A and B) buy a registered property together, each contributing 50% of the purchase price and being registered jointly as the legal owners as the Land Registry.

Is a trust imposed in the circumstances?

Answer 3

yes, a trust is automatically imposed. A and B hold the property on trust for themselves. They are both the legal and equitable owners.

Question 4

when does a resulting trust arise?

Answer 4

resulting trust may be implied if, eg, property is bought in A’s name, but B makes a financial contribution. so if B paid 25% of the price, A will hold property on trust for a and B in a 75/25% ratio

Question 5

when does a constructive trust arise?

Answer 5

they are imposed where it is unconscionable for the legal owner of the land to deny the interest of another person

Question 6

when does a trust of land arise in co-ownership?

Answer 6

trust of land is automatically imposed on the co-owners which has the effect of separating the legal and equitable titles

Question 7

what does unity of possession mean?

Answer 7

co-owners of co-owned land are simultaneously entitled to possession of it, no co-owner is entitled to exclusive possession of any party

Question 8

what are the 4 unities of title?

Answer 8

1. unity of possession
2. unity of title
3. unity of interest
4. unity of time

Question 9

what does ‘unity of possession’ mean (one of the 4 unities of title)?

Answer 9

each co-owner is as much entitled to possession of any part of the land as the others (no co-owner can be excluded from any part of the land)

Question 10

what does ‘unity of title’ mean (1 of the 4 unities of title)?

Answer 10

all co-owners must acquire their title from the same document. (satisfied if all obtain title from same transfer deed or lease)

Question 11

what does ‘unity of interest’ mean (1 of the 4 unities of title)?

Answer 11

interest in land held by each co-owner must be of the same nature and duration

Question 12

what does ‘unity of time’ mean (1 of the 4 unities of title)?

Answer 12

interest of each co-owner must vest at the same time. (they don’t need to sign the doc at the same time or move in at the same time). instead, means interest of each co-owner must take effect at the same time

Question 13

does survivorship apply to joint tenants or tenants in common?

Answer 13

joint tenants

Question 14

what is the maximum number of legal owners?

Answer 14

maximum of 4 legal owners

Question 15

what is severance?

Answer 15

the process of converting an equitable interest held as a joint tenancy into an interest held as a tenancy in common

(joint tenant can convert an interest into separate share held as tenant in common)

Question 16

can a joint tenancy be severed?

Answer 16

yes, an equitable joint tenancy can be severed by any joint tenant so that the person in the future holds a separate share as a tenant in common

Question 17

Even if 4 unities are present, an express declaration that the owners hold as tenants in common will prevail (Pink v Lawrence). Where there is no specific wording, a rebuttable presumption of tenancy in common arises where:

Answer 17

a) land is a business asset; and
b) purchase price of a non-domestic property has been paid in unequal shares

Question 18

what is a tenancy in common?

Answer 18

a distinct but undivided share in land (as holder cannot point to a particular part as say that is theirs)

Question 19

what is the effect of severance on their share of the property?

Answer 19

if a joint tenant successfully severs the equitable joint tenancy, they will hold a tenancy in common (which is an equal share) based on the number of former joint tenants NOT proportion of contributions made to initial price

Question 20

how can you sever a joint tenancy in writing?

Answer 20

provide a notice in writing to all of the other equitable joint tenants - must demonstrate an unequivocal and irrevocable intention to sever the equitable joint tenancy immediately

Question 21

who can apply to the court for an order in relation to the land for resolution of disputes related to co-owned land?

Answer 21

anyone with an interest in the land can apply to the court for an order in relation to that land

Question 22

what can the court order a trustee to do (resolution of dispute related to co-owned land) and what can they not order a trustee to do?

Answer 22

can order: to sell, allow a beneficiary into occupation
CANNOT: order beneficiary to ‘buy out’ the other

Question 23

what factors must a court consider when making its decision on the resolution of dispute relating to co-owned land?

(s15 factors)

Answer 23

• the purpose for which the property was bought and whether that purpose is still continuing (weigh against an order for sale being made)
• the welfare of any minor who occupies or might reasonably be expected to occupy
• interest of secured creditors of any beneficiary
• court must have regard to wishes of beneficiaries over 18 (if dispute then court shall have regard to majority in respect of value of interest held)