Co-Ownership

Question 1

AG Securities v Vaughan

Answer 1

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

Question 2

Goodman v Gallant

Answer 2

Declarations of equitable interests are conclusive, and severance of JT at equity always gives equal shares.

Question 3

Lake v Gibson

Answer 3

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)

Question 4

Malayan Credit v Jack Chia Ltd

Answer 4

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.

Question 5

Carlton v Goodman

Answer 5

ALWAYS TRY TO AGREE ON AND THEN

RECORD HOW THE BENEFICIAL INTEREST IS TO BE HELD.

Question 6

Stack v Dowden

Answer 6

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.

Question 7

Laskar v Laskar

Answer 7

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)

Question 8

William v Hensman

Answer 8

JT may be severed in three ways:

1. Any act of the persons operating upon his own share
2. A joint-tenancy may be severed by mutual agreement.
3. Severance by conduct

Question 9

Burges v Rawnsley

Answer 9

An informal agreement, drawn from the parties’ course of dealing was enough to sever the JT

Question 10

First National Securities v Hegerty

Answer 10

Forging a signature on a mortgage results in severance and only the equitable share severed was passed on to the bank as a security.

Question 11

Hunter v Babbage

Answer 11

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.

Question 12

Pankhania v Chandegra

Answer 12

Declarations are conclusive, despite the domestic context.

Question 13

Kaki v Kaki

Answer 13

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.

Question 14

Re Draper’s Conveyance

Answer 14

The need for the notice to express an immediate severance. A written summon was effected in severance

Question 15

Harris v Goddard

Answer 15

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.

Question 16

Kinch v Bullard

Answer 16

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

Question 17

Gore and Snell v Carpenter

Answer 17

The notice must be an expression of intention, not an invitation to negotiate

Question 18

Nielsen-Jones v Fedden

Answer 18

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.

Question 19

Re K (Deceased)

Answer 19

Accidentally killed her husband, so did not forfeit the interest

Question 20

Re Gorman (A Bankrupt)

Answer 20

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.

Question 21

Between a co-owner and a trustee in bankruptcy

Answer 21

S 335A Insolvency Act 1986

Question 22

Re Mayo

Answer 22

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.

Question 23

Re Buchanan-Wollaston’s Conveyance

Answer 23

The collateral purpose was still capable of fulfillment, the court will postpone and refuse to order the sale. Collateral purpose doctrine got started.

Question 24

Jones v Challenger

Answer 24

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.

Question 25

Re Ever’s Trust

Answer 25

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.

Question 26

Abbey National v Moss

Answer 26

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.

Question 27

TSB Bank v Marshall

Answer 27

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.

Question 28

Mortgage Corporation v Sahire

Answer 28

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.

Question 29

Bank of Ireland v Bell

Answer 29

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.

Question 30

First National v Achampong

Answer 30

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.

Question 31

Edwards v Lloyds TSB

Answer 31

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.

Question 32

Alliance & Leicester v Slayford !!!

Answer 32

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.

Question 33

Bank of Baroda v Dhillon

Answer 33

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.

Question 34

Re Citro

Answer 34

“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.

Question 35

Insolvencyy Act s.335, s.335(a)

Answer 35

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.

Question 36

Judd v Brown

Answer 36

Mrs Judd was undergoing chemotherapy. In that case, the court was willing to postpone the sale.

Question 37

Claughton v Charambolous

Answer 37

the house had been adapted to accommodate severely disabled innocent co-owner. Life span is limited, the creditors could wait. EXTREME difficulties.

Question 38

Nicholls v Lam

Answer 38

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.

Question 39

Re Bremner

Answer 39

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.