Co-Ownership

Question 0

Chun v Ho (JT statutory restriction)

Answer 0

Statute (s12-13 TOLATA) can restrict a JT’s use of the land without destroying unity of possession

Question 1

Gould v Kemp

Answer 1

The right to survivorship in joint tenancy takes precedence over any will, even if explicitly leaving a share

Question 2

Antoniades v Villiers

Answer 2

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

Question 3

Goodman v Gallant

Answer 3

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

Question 4

Clarke v Meadus

Answer 4

A written declaration can be departed from but only where the conduct of one of the parties amounts to an estoppel - quite rare -

Question 5

Carlton v Goodman

Answer 5

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

Question 6

Jones v Kernott (JT presumption)

Answer 6

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

Question 7

Lake v Craddock

Answer 7

The provision of unequal monetary shares in land can rebut the presumption and establish a lack of unity of interest

Question 8

Jones v Kernott
Stack v Dowden
(Equity follows the law)

Answer 8

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

Question 9

Holman v Howes

Answer 9

An application for order of sale under s14 can be refused or postponed -

Question 10

Harris v Harris

Answer 10

The need for a matrimonial home, accommodation for co-owners, etc. will action a refusal or postponement of an order of sale under s14

Question 11

Edwards v Lloyds TSB

Answer 11

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

Question 12

Banker’s Trust v Namdar

Answer 12

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

Question 13

Finch v Hall, Chun v Ho

Answer 13

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

Question 14

Mortgage Corporation v Shaire

Answer 14

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 -

Question 15

Everitt v Budhram

Answer 15

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

Question 16

Harrington v Bennett

Answer 16

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

Question 17

Barca v Mears

Answer 17

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

Question 18

Dean v Stout (Lawrence Collins J)
Re Citro
Barca v Mears
Pinnock
-- commentary per s335A IA

Answer 18

• 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

Question 19

City of London Building Society v Flegg (overreaching)

Answer 19

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

Question 20

Lloyd’s Bank v Rosset
Stack v Dowden
Jones v Kernott
(Non-overreaching)

Answer 20

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

Question 21

Skipton Building Society v Clayton

Answer 21

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

Question 22

Chun v Ho (Occupation)

Answer 22

s12 and enforced here - an equitable owner has a right to occupy land providing that this was the purpose of the trust

Question 23

Roy v Roy

Answer 23

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)

Question 24

McKenzie v McKenzie (Stack, Kernott)

Answer 24

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

Question 25

Oxley v Hiscock

Answer 25

Constructive trusts overlap with prop. estoppel - where someone who comes later tries to establish an equitable interest in the land

Question 26

Bull v Bull

Answer 26

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

Question 27

Bradbury v Hooling

Answer 27

‘Purchase price’ resulting trust - this will establish equitable co-ownership unless it can be proven to be a gift or loan

Question 28

Halifax Building Society v Brown

Answer 28

Even if all the C has provided is the deposit then this will be a resulting trust

Question 29

Bank of India v Mody

Lightfoot v Lightfoot Brown

Answer 29

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

Question 30

Curley v Parkes

Laskar v Laskar

Answer 30

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

Question 31

Stack v Dowden (resulting trusts)

Abbott v Abbott

Answer 31

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

Question 32

Chaudhary v Chaudhary

Answer 32

Questioned the abandoning of the resulting trust in familial situations

Allowed an acquisition of a share to be inferred

Question 33

Rosset, Stack, Kernott (constructive trust)

R = acquisition and S and K = quantification

Answer 33

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

Question 34

Thompson v Hurst

Answer 34

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

Question 35

Grant v Edwards

Answer 35

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

Question 36

Oxley v Hiscock (L Bridge)

Answer 36

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

Question 37

Geary v Rankine

Answer 37

The use of the broad view put down in Stack and Kernott

Imputation may not apply to acquisition claims

Question 38

Gissing v Gissing

Answer 38

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

Question 39

Greasley v Cook

Answer 39

Must be detrimental reliance following common intention but the court will assume it unless it is contested by the legal owner

Question 40

Century UK v Clibbery

Answer 40

Detriment must not be trivial

Question 41

Eaves v Eaves

Answer 41

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 -

Question 42

Springette v Foe

Answer 42

Where a resulting trust has been established, the interest will be quantified per the contribution

Question 43

Clough v Killey

Answer 43

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

Question 44

Oxley v Hiscock (quantification)

Answer 44

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

Question 45

Fowler v Barron

Answer 45

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

Question 46

Burgess v Rawnsley

Answer 46

s36(2) LPA giving notice of severance via writing to become TIC

Question 47

Re 88 Berkley Rd

Answer 47

Notice of severance need only be delivered, not read

Question 48

White v White

Answer 48

IT seems that an oral agreement not to sever will render a later attempt ineffective - this however seems more of an estoppel

Question 49

William v Hensman

Answer 49

CL severance authority for 1. an act operating on his own share, 2. where JTs sever by mutual agreement and 3. by mutual conduct

Question 50

Equity and Home Loans v Prestridge

Answer 50

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