co-ownership Flashcards
what is concurrent co-ownership?
when two or more people together own the same estate (freehold or leasehold) in the same piece of land at the same time.
What formalities must be complied with in order to create an express trust of land?
The declaration of trust must be evidenced in writing signed by the person creating the trust.
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?
yes, a trust is automatically imposed. A and B hold the property on trust for themselves. They are both the legal and equitable owners.
when does a resulting trust arise?
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
when does a constructive trust arise?
they are imposed where it is unconscionable for the legal owner of the land to deny the interest of another person
when does a trust of land arise in co-ownership?
trust of land is automatically imposed on the co-owners which has the effect of separating the legal and equitable titles
what does unity of possession mean?
co-owners of co-owned land are simultaneously entitled to possession of it, no co-owner is entitled to exclusive possession of any party
what are the 4 unities of title?
- unity of possession
- unity of title
- unity of interest
- unity of time
what does ‘unity of possession’ mean (one of the 4 unities of title)?
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)
what does ‘unity of title’ mean (1 of the 4 unities of title)?
all co-owners must acquire their title from the same document. (satisfied if all obtain title from same transfer deed or lease)
what does ‘unity of interest’ mean (1 of the 4 unities of title)?
interest in land held by each co-owner must be of the same nature and duration
what does ‘unity of time’ mean (1 of the 4 unities of title)?
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
does survivorship apply to joint tenants or tenants in common?
joint tenants
what is the maximum number of legal owners?
maximum of 4 legal owners
what is severance?
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)
can a joint tenancy be severed?
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
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:
a) land is a business asset; and
b) purchase price of a non-domestic property has been paid in unequal shares
what is a tenancy in common?
a distinct but undivided share in land (as holder cannot point to a particular part as say that is theirs)
what is the effect of severance on their share of the property?
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
how can you sever a joint tenancy in writing?
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
who can apply to the court for an order in relation to the land for resolution of disputes related to co-owned land?
anyone with an interest in the land can apply to the court for an order in relation to that land
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?
can order: to sell, allow a beneficiary into occupation
CANNOT: order beneficiary to ‘buy out’ the other
what factors must a court consider when making its decision on the resolution of dispute relating to co-owned land?
(s15 factors)
- 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)
