Co-Ownership Flashcards
Chun v Ho (JT statutory restriction)
Statute (s12-13 TOLATA) can restrict a JT’s use of the land without destroying unity of possession
Gould v Kemp
The right to survivorship in joint tenancy takes precedence over any will, even if explicitly leaving a share
Antoniades v Villiers
Unity of interest - JTs may sign physically different documents and there still be unity, as long as what those documents represents is the nature of a JT then it would be a pretence to find otherwise - matter not form
Goodman v Gallant
Where a conveyance expressly stipulates that it is a JT or TIC then that will usually be conclusive as to the nature of the equitable title - this will also usually prevent any later events changing it like resulting or constructive trusts, unless it would be inequitable to disallow it - NB this only applies to the parties of the declaration
Clarke v Meadus
A written declaration can be departed from but only where the conduct of one of the parties amounts to an estoppel - quite rare -
Carlton v Goodman
The parties are only bound where the written declaration expressly refers to the equitable interests - here there was no equitable interests stipulated and even though there were two legal owners, the equitable ownership resided solely in one legal owner, meaning legal ownership of a property does not guarantee a share of equitable title
Jones v Kernott (JT presumption)
Rebuttal of the presumption of JT at equity where not expressly stipulated by circumstances e.g. hardship of right of survivorship or other intentions to the contrary
Lake v Craddock
The provision of unequal monetary shares in land can rebut the presumption and establish a lack of unity of interest
Jones v Kernott
Stack v Dowden
(Equity follows the law)
This has made the area of ‘equity follows the law’ where there is a lack of express declaration of equitable interest much more difficult as the courts are clearly prepared to infer interests and quantify such interests from ‘exceptional’ circumstances
Holman v Howes
An application for order of sale under s14 can be refused or postponed -
Harris v Harris
The need for a matrimonial home, accommodation for co-owners, etc. will action a refusal or postponement of an order of sale under s14
Edwards v Lloyds TSB
The need for a home for a minor will mean that an order of sale can be postponed so that children can have a home even if there is a mortgagee
Also, a creditor will not be kept from their money even if a homes is lost for the non-consenting co-owners
Banker’s Trust v Namdar
A sale of land will not be ordered as unequivocally as before - turns on who is requesting the sale - things like no children, it not being a home (investment), etc. will see a sale likely to be ordered
Finch v Hall, Chun v Ho
Children, non-desperate financial need, agreement between co-owners to not sell unless consent i.e. in the trust instrument or even informally - will all resist an order of sale but not necessarily
Mortgage Corporation v Shaire
It seems that the case law is inconsistent RE order of sale and creditors - even though creditors should not normally be kept from their money -
Everitt v Budhram
Where an application is made under s14 by a trustee in bankruptcy all considerations are taken into account of both sides except the needs of the bankrupt
Harrington v Bennett
After 1 year of bankruptcy, the interests of the creditors outweigh those of the innocent co-owners unless the circumstances are exceptional - before that the sale may well be delayed for arrangements to be made
Barca v Mears
A sale will only be delayed after the 1 year grace period in truly exceptional circumstances such as a serious/terminal illness, here the child was disabled and that was insufficient, they also said that the request of the trustee in bankruptcy will almost always overwhelm - NB Art 8
Dean v Stout (Lawrence Collins J) Re Citro Barca v Mears Pinnock -- commentary per s335A IA
- exceptional circumstances do not automatically debar a sale
- ‘exceptional must be outside of melancholy and usual debt’
- NB Art 8 issues, however, if near automatic
- however, didn’t seem to make a difference even though they said Art 8 was a defence
City of London Building Society v Flegg (overreaching)
A purchaser who buys from two or more legal owners takes the land free of rights of the equitable owners, whose rights are transferred to the proceeds of sale
Lloyd’s Bank v Rosset
Stack v Dowden
Jones v Kernott
(Non-overreaching)
Someone who gains an equitable interest in the land by way of a trust of land will not be overreached, if they are in actual occupation at the time of the purchase, if they are not in actual occupation then they will be overreached - if not the equitable owner’s interests override
Skipton Building Society v Clayton
If a purchaser has not overreached and there is an equitable owner whose interests override then the purchaser can claim priority by proving that the e. owner consented to the purchase or mortgage - NB mere knowledge of the transaction is insufficient
Chun v Ho (Occupation)
s12 and enforced here - an equitable owner has a right to occupy land providing that this was the purpose of the trust
Roy v Roy
Equity follows the law- Conveyancing of land to two or more people without expressly stipulating their equitable interest will see the equitable ownership mirror the legal ownership unless the conveyancing was merely administrative and there is a clear, true owner (Carlton)
McKenzie v McKenzie (Stack, Kernott)
Where a conveyance has been expressly executed, BUT THERE WAS NO DECLARATION OF EQUITABLE OWNERSHIP then the legal owners may mount a claim of constructive (exceptionally resulting) trust to prove an enlarged share
Oxley v Hiscock
Constructive trusts overlap with prop. estoppel - where someone who comes later tries to establish an equitable interest in the land
Bull v Bull
Where someone new (lover, adult child, etc) comes along and establishes an equitable interest then there is still only one legal owner but the equitable ownership is co-owned
Bradbury v Hooling
‘Purchase price’ resulting trust - this will establish equitable co-ownership unless it can be proven to be a gift or loan
Halifax Building Society v Brown
Even if all the C has provided is the deposit then this will be a resulting trust
Bank of India v Mody
Lightfoot v Lightfoot Brown
The money given to claim resulting trust must have been given for acquisition not merely for repair
If there was no intention to acquire an interest then even if there was money contributed then there will be no resulting trust
Curley v Parkes
Laskar v Laskar
Has been said that Mortgage payments will not allow a resulting trust as they come after the acquisition of the property
in L v L they said the contrary and this is stronger authority
Stack v Dowden (resulting trusts)
Abbott v Abbott
Resulting trusts are generally unsuitable for family situations due to them purely relating to the payment of money which overlooks the complexity of family life
Chaudhary v Chaudhary
Questioned the abandoning of the resulting trust in familial situations
Allowed an acquisition of a share to be inferred
Rosset, Stack, Kernott (constructive trust)
R = acquisition and S and K = quantification
Common Intention and detrimental reliance - note that the latter two expanded the Rosset but this was acquisition so the law is somewhat in a state of flux although it is looking more likely that S and K will be followed in acquisition cases too at least partially
Thompson v Hurst
Indirect monies given to the running of the house less than £100 a week gave rise to an equitable 9% interest – here Stack v Dowden was applied to this ACQUISITION case
Grant v Edwards
An express promise or assurance to the C concerning the house being theirs, etc. will give rise to a constructive trust even where the D has no intention of it being that way
Oxley v Hiscock (L Bridge)
For number 2 possibility of CI CT L Bridge said could only be CT if purchase price or mortgage claims – expanded in Stack - too much overlap with RT
Geary v Rankine
The use of the broad view put down in Stack and Kernott
Imputation may not apply to acquisition claims
Gissing v Gissing
Difference between imputation and inference - the former being an intention that the parties would have had, had they thought about it - Hale and Walker in Kernott stated that the differences in practice aren’t so clear
Greasley v Cook
Must be detrimental reliance following common intention but the court will assume it unless it is contested by the legal owner
Century UK v Clibbery
Detriment must not be trivial
Eaves v Eaves
Detriment can take many forms - paying bills, doing extraordinary housework - it does not need to be ‘harmful’ so giving up one property to move into a lover’s luxury one is still a detriment -
Springette v Foe
Where a resulting trust has been established, the interest will be quantified per the contribution
Clough v Killey
Constructive trust quantification - if it is clear from the common intention what the portion of quantification should be then the courts should not depart from that
Oxley v Hiscock (quantification)
If there has been NO discussion of the quantum allocated to each party then the courts must ‘grab the nettle’ and realise that they are exercising judicial discretion - the court must have regard to the whole course of dealing per Chadwick LJ
Fowler v Barron
Although L Hale has stated that the presumption of equity following the law (where there are two legal owners) only does not apply in exceptional circumstances when looking at quantification of an interest, this has not been the case and it provides uncertainty for a party and any third party
Burgess v Rawnsley
s36(2) LPA giving notice of severance via writing to become TIC
Re 88 Berkley Rd
Notice of severance need only be delivered, not read
White v White
IT seems that an oral agreement not to sever will render a later attempt ineffective - this however seems more of an estoppel
William v Hensman
CL severance authority for 1. an act operating on his own share, 2. where JTs sever by mutual agreement and 3. by mutual conduct
Equity and Home Loans v Prestridge
A mortgage given over a whole property will only be covered for the percentage given e.g. 80%, if there is someone who can establish a prior beneficial interest then they will take the remainder (20%) free and then lose priority for the other 80%—-If a second mortgageone subrogates to the first it may assume consent
