Co-Ownership Flashcards
What happens under TOLATA whenever land is owned jointly?
A trust is imposed which means that the legal title is kept separate from the equitable title.
What status does an interest in a trust of land have?
It is an inherently equitable interest.
If a trust is expressly created, what formalities must be followed?
Trust must be evidenced in writing and signed by the declarants.
What formalities are required for an implied trust?
No formalities - it a resulting or constructive trust
If a joint tenancy exists, what are the implications?
Four unities of title must exist - property is owned as one collective entity.
Right of survivorship applies
Level of contribution is irrelevant.
If a tenancy in common exists, what are the implications?
Only requires the unity of possession.
A ‘distinct but undivided share’
Survivorship does not operate
Share can be proportionate to contribution.
What are the four unities of title?
Unity of possession - no co-owner can be excluded from any part of the land.
Unity of title - status derived from the same document
Unity of interest - Interest must be the same in nature and duration.
Unity of time - interest of each co-owner must vest at the same time.
How does survivorship operate when a joint tenant dies?
Automatically - interest accrues on death and is unaffected by any provision in a will
What rules apply to the legal title?
Maximum of four legal owners
Must be of full age and sound mind
Must hold the property as joint tenants [must have the four unities]
What happens on the death of any legal joint tenant?
Right of survivorship will always operate and interest will accrue to surviving joint tenants
Legal joint tenancy cannot be severed to make a tenancy in common
What is severance?
The process of converting an equitable interest held as a joint tenancy into an interest held as a tenancy in common.
What prevails - the four unities, or an express declaration that owners are tenants in common?
The declaration - including words such as ‘in equal shares’, ‘equally’ etc.
In which situation does a rebuttable presumption of a tenancy in common arise?
If the land is a business asset
If the purchase price of a non-domestic property has been paid in unequal shares.
Is it possible to sever the legal title?
No - only the equitable title.
Can a will sever an equitable title?
No, as wills only operate after death - must be severed in lifetime.
How can an equitable title be severed?
By notice in writing
By other acts or things - Williams v Hensman
What are the ‘other acts or things’ that can sever an equitable joint tenancy?
Unilateral act by one joint tenant - total alienation, partial alienation, involuntary alienation
Mutual agreement
Mutual conduct
What is the effect of severance?
Upon severance, each tenant takes an equal share according to the number of joint tenants, NOT contribution to initial price.
What must a notice in writing demonstrate to sever a joint tenancy?
An unequivocal and irrevocable intention to sever the equitable joint tenancy immediately. No formalities required.
Example: divorce papers with order that home be sold and proceeds split equally severed a joint tenancy.
What must happen in the service of the notice?
Must be served on all of the other equitable joint tenants - handed over personally or posted.
Will be deemed served if left at the ‘last known place of abode or business’ of the joint tenants, or if made by registered post and not left undelivered. No need for note to be read or received.
How can unilateral acts be subdivided into categories?
Total alienation
Partial alienation
Involuntary alienation
What is an act of total alienation?
When the severing owner disposes of the interest permanently, by way of sale or gift of interest
What is an act of partial alienation?
When owner temporarily disposes of the interest by way of mortgage or lease
What is involuntary alienation?
When a joint tenant is declared bankrupt by the court.
When will severance by mutual agreement occur?
When all equitable joint tenants agree that one person’s interest is severed
Example: agreeing a theoretical sale price for one person’s share. It should serve as an indication of a common intention to sever.
What may exist if parties have not reached a point of mutual agreement?
Mutual conduct may exist - defined as “any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common”.
Why may it be difficult to show severance by mutual conduct?
The fact negotiations are ongoing suggests a lack of mutuality as they cannot conclude!
Give an example where severance by mutual conduct was found
Making mirror wills which included provisions for property which were inconsistent with the law of survivorship.
Who can apply to the court for a hearing about dispute over co-owned land?
Anyone with an interest in the land - trustees, beneficiaries, etc.
What can the court order trustees to do under TOLATA s14?
Sell, allow a beneficiary into occupation - but cannot order one beneficiary to ‘buy out’ the other.
What factors must the court consider when making a decision under TOLATA s14?
The intention of the people / person who created the trust
The purposes for which the property subject to trust is held [and whether it is still continuing]
The welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home [depends on age / dependency]
Interests of the secured creditor of any beneficiary
Circumstances and wishes of any beneficiaries of full age or the majority, according to the value of their combined interests.
How has the approach of the courts to the interests of the creditor changed over time under TOLATA?
Used to favour creditor - preferring to sell always.
Now more neutral - but creditor’s interests still weigh heavily.
