Co-Ownership Flashcards
AG Securities v Vaughan
Not JT if the any of the four unities (time, interest, title and possession) are missing. Here, the tenants had licenses, not leases, as their agreements were made at different times, for different lenghts and terms
Goodman v Gallant
Declarations of equitable interests are conclusive, and severance of JT at equity always gives equal shares.
Lake v Gibson
If unequal contributions were made towards the legal JT, and no declaration of equity were made - TC in equity with appropriate shares (not in houses purchased for domestic use)
Malayan Credit v Jack Chia Ltd
Where premises are held by two persons as JTs at law for their several business purposes, they do not intend to hold as joint tenants in equity.
Carlton v Goodman
ALWAYS TRY TO AGREE ON AND THEN
RECORD HOW THE BENEFICIAL INTEREST IS TO BE HELD.
Stack v Dowden
Where property was held by couple for the purpose of providing a home and where there was no declaration of a tenancy in common, the Court would presume that an equitable joint tenancy had been intended.
Laskar v Laskar
Even if property bought by a couple, then if it’s for other purpose such as commercial then Stack v Dowden is not applicable - and the resulting trust presumption still appears to apply (= shares according to contribution)
William v Hensman
JT may be severed in three ways:
- Any act of the persons operating upon his own share
- A joint-tenancy may be severed by mutual agreement.
- Severance by conduct
Burges v Rawnsley
An informal agreement, drawn from the parties’ course of dealing was enough to sever the JT
First National Securities v Hegerty
Forging a signature on a mortgage results in severance and only the equitable share severed was passed on to the bank as a security.
Hunter v Babbage
Had an unenforceable (for reasons of formality) agreement to give unequal shares. The fact that they had the agreement was a method to indicate that the severance had occurred, but still equal shares.
Pankhania v Chandegra
Declarations are conclusive, despite the domestic context.
Kaki v Kaki
The four named
legal owners of the new lease cannot escape their duties and obligations as trustees for each of Sheikh Kaki’s nine children by the refusal of some of them to sign an express declaration of trust in circumstances when they knew that this was what Sheikh Kaki intended.
Re Draper’s Conveyance
The need for the notice to express an immediate severance. A written summon was effected in severance
Harris v Goddard
The wife petitioned for the divorce and requested severance. This was not held to be a written notice, as it was merely a request for the court.
Kinch v Bullard
Notice was severed at the time that the letter was delivered. Once this had occurred, it was too late for Mrs Johnson to seek to change her mind
Gore and Snell v Carpenter
The notice must be an expression of intention, not an invitation to negotiate
Nielsen-Jones v Fedden
Agreed on a divorce in a memorandum. The husband died before the selling of the house. The court allowed the wife to keep the property, because the memorandum didn’t say anything about the proceeds are held.
Re K (Deceased)
Accidentally killed her husband, so did not forfeit the interest
Re Gorman (A Bankrupt)
A rule of thumb or convenience that the quantum of the occupying
owner’s claim in respect of mortgage repayments is deemed to be the same as the claim of the
ousted owner’s claim for an occupation rent.
There must be deducted from it all the money needed to redeem the mortgage. Then the one in possession must be given credit for paying the other’s share of the mortgage instalments and be debited with an occupation rent for
using the other’s share of the house.
Between a co-owner and a trustee in bankruptcy
S 335A Insolvency Act 1986
Re Mayo
4 trustees (legal owners), and one of them wanted to sell the property against the wishes of the other. If there were bad faith (another purpose to the acquisition of that piece of land) and …. The minority trustee got his way.
Re Buchanan-Wollaston’s Conveyance
The collateral purpose was still capable of fulfillment, the court will postpone and refuse to order the sale. Collateral purpose doctrine got started.
Jones v Challenger
H and W divorce, H wants to stay in the home, W wants the equity in the home released. The duty to sale cannot prevail where the trust itself show that there was a collateral object beside that of sale —> in this case, because the marriage had come to an end, there was no longer a collateral object, so the H was forced to agree to the sale.
Re Ever’s Trust
A co-habiting couple had already been living together, and they bought the home (it wasn’t a matrimonial home, since they weren’t married) but it was bought to raise children - so the person was allowed to stay, because they purchased the house for the children as well, so the collateral purpose was able of fulfillment.
Abbey National v Moss
The daughter forged mother’s signature on the mortgage agreement, took the money and left the country - defaulted. Continuing collateral purpose - to order a sale seems to me to be grossly unequitable. The mother has no moral claim on the mortgagee, but in a way she does. When the court has to choose between two innocent parties, they’re going to look at who took the risk. The bank should have insured that the mother really signed the mortgage in the first place.
TSB Bank v Marshall
New act, s.14. Even in the new regime, the court will use the collateral purpose jurisprudence. Here, since the children where grown up now, there was no collateral purpose anymore and the creditors got the house.
Mortgage Corporation v Sahire
Ms Shaire had a legal charge, but undue influence, Mr defaulted and the C wanted their money. She was not in actual occupation of the property, but she was able to pay the money back. The mortgage company would not be kept out of their money, because she could repay the whole sum during the lifetime of the mortgage.
Bank of Ireland v Bell
Opposite to Shaire. S.15 - scope for some change in the court’s practice. Is creditor receiving proper recompence for the outstanding money. Ms Bell had no prospect for repaying the money, so sell of order.
First National v Achampong
the fact that Ms had overridning interest did not prevent the sale - children were grown, etc, - no collateral interest. The scales are balanced, but no reason for the sale not to be ordered.
Edwards v Lloyds TSB
Forged names on a mortgage, leaves his wife there to pay the mortgage. No order of sale, because the children were minor, the debt was 40%, plenty of equity left.
Alliance & Leicester v Slayford !!!
frustrated creditor may seek to circumvent s.14. The H defaulted, and the bank instead of applying for an order for sale under TLATA, they sued the husband, deliberately bankrupted him, because they knew that the court will likely rule in favour of trustee in bankruptcy. Abuse of process? NO, they had the right to sue him for arrears. –> Insolvency Act, very difficult to prevent the sale.
Bank of Baroda v Dhillon
under the old regime; Boland-type case, H sole trustee, on trust for H and W. Behind her back, he gets a mortgage, bank wants to sell the house and the wife opposes, because she has an overriding interest. But since the need of the bank is more important - because it was unlikely they will get the money from H.
Re Citro
“Such circumstances, while engendering a natural sympathy in all who hear of them, cannot be described as exceptional. They are the melancholy consequences of debt and improvidence with which every civilised society has been familiar.”
The wife was poorly, the children went to the local school. The wife didn’t have enough money to buy anywhere nearby, basically homeless.
Even the prospect of homelessness is not exceptional circumstances, because that’s what you expect when you go insolvent.
Insolvencyy Act s.335, s.335(a)
IA s.335. The need of the bankrupt are never a consideration. s.335a(3) - one year - the interests of the creditors outweigh all other consideration. Almost all cases will come to the trial at least a year after the bankruptcy.
Judd v Brown
Mrs Judd was undergoing chemotherapy. In that case, the court was willing to postpone the sale.
Claughton v Charambolous
the house had been adapted to accommodate severely disabled innocent co-owner. Life span is limited, the creditors could wait. EXTREME difficulties.
Nicholls v Lam
W had schizophrenia. It was not considered exceptional, because she owned other properties. But the additional sufferance of moving would be exceptional, but she wasn’t threatened with homelessness.
Re Bremner
W had schizophrenia. It was not considered exceptional, because she owned other properties. But the additional sufferance of moving would be exceptional, but she wasn’t threatened with homelessness.
