Co-ownership

Question 1

Which case is authority for the fact that a statement of intention in the deed that the parties are joint tenants is conclusive in the absence of contrary evidence and therefore their contributions are irrelevant?

Answer 1

Goodman v Gallant

Question 2

What are the three characteristics of a joint tenancy?

Answer 2

(1) Each JT is wholly entitled to the whole - they are together regarded as one person
(2) The right of survivorship
(3) The presence of the four unities

Question 3

What are the four unities?

Answer 3

(1) possession - entitled to the whole each
(2) interest - each has the same with no distinction
(3) title - derived from the same document
(4) time - interest vests in the JTs at the same time

Question 4

What are the four characteristics of a tenancy in common?

Answer 4

(1) Each tenant owns a distinct share - I.e. % related to their contribution
(2) No right of survivorship - on death share passes according to will or intestacy laws
(3) Purchase deed will express clear words of severance of beneficial interest
(4) Only have unity of possession - physically undivided possession to property

Question 5

In which case did the purchase deed referring to ‘equal shares’ of the beneficial interest mean that there was a tenancy in common with a 50:50 split?

Answer 5

Payne v Webb

Question 6

Where is the authority for the fact that only a joint tenancy can exist at law?

Answer 6

S.1(6) LPA 1925

Question 7

Where is the authority for the fact that you cannot sever the legal title?

Answer 7

S.36(2) LPA 1925

Question 8

Where is the authority for the fact that if there are more than four trustees or co-owners you only need permission of the first legal four in order to sell the property?

Answer 8

S.34(2) LPA 1925

Question 9

Which case held that you could only acquire a beneficial interest in the property as a co-owner through a direct financial contribution?

Answer 9

Lloyds Bank Plc v Rosset [1991]

Question 10

In which case did Lord Denning consider that undertaking DIY work around the house with a heavy sledgehammer was sufficient to acquire a beneficial interest through a constructive trust in the property without a financial contribution?

Answer 10

Eves v Eves [1975]

Question 11

Which case is authority for the fact that housework and ‘pin-money’ is not sufficient to create a beneficial interest in the home under a constructive trust?

Answer 11

Burns v Burns [1984]

Question 12

Which case suggests that when considering whether someone has acquired a beneficial interest under a constructive trust it is relevant to look to all the circumstances? You look at what the parties intended. What case confirmed this?

Answer 12

Lady Hale in Stack v Dowden [2007]; Stack v Dowden [2011]

Question 13

Is Goodman v Gallant still good law following Stack v Dowden and Jones v Kernott? What does this mean?

Answer 13

Yes - it mans that the contributions that parties make are irrelevant if in the purchase deed they express themselves to be beneficial joint tenants then this will be conclusive

Question 14

In which case did Lord Bridge suggest that you could not acquire a beneficial interest under an implied trust by virtue of an intention that the property be kept as a family home or as a joint venture itself? What is his famous phrase?

Answer 14

Lloyds Bank Plc v Rosset [1991] - it is extremely doubtful whether anything less than direct financial contributions will do

Question 15

Which case casts doubt on Lord Bridge’s opinion from Rosset that anything less than financial contributions will do to acquire a beneficial interest? What did the HoL suggest considering instead?

Answer 15

Stack v Dowden [2007]
Lady Hale - indirect contributions are sufficient. Consider what the common intention of the parties was (actual, inferred or imputed). Consider all the circumstances including: advice or discussions at the time of transfer, purpose for which the home was acquired, nature of the parties’ relationship, how discharged outgoings on property and their other household expenses

Question 16

Where is the authority for the fact that a trustee of land has the powers of an absolute owner and what does this mean?

Answer 16

S.6 Trusts of Land and Appointment of Trustees Act (TLA) 1996
It means they have the power to sell, mortgage or lease the land

Question 17

Where is the authority for the fact that where a disposition of land requires the consent of two trustees any two will be sufficient? Why two?

Answer 17

S.10 TLA 1996 - need payment to two or more trustees to overreach beneficial interest

Question 18

What does s.11 TLA 1996 require trustees to do?

Answer 18

Consult with beneficiaries as far as practicable and give effect to their wishes as far as is consistent with the general interest of the trust when dealing with land

Question 19

What statutory authority governs disputes between trustees and beneficiaries concerning land?

Answer 19

Ss.14-15 TLA 1996

Question 20

Where is the authority for the fact that any person who is a trustee or has an interest in the property can make an application to the court for an order where a dispute is concerned between trustees and beneficiaries?

Answer 20

S.14(1) TLA 1996

Question 21

What powers does the court have when dealing with a dispute between trustee and beneficiary in land and where is the authority for this?

Answer 21

S.14(2) TLA 1996 - court can make any order relating to the exercise of trustees’ powers (incl. removal of obligation to consult or gain consent of beneficiaries) and can declare the nature or extent of person’s interest in property

Question 22

When deciding whether to make an order under TLA 1996 what is the court directed to consider and where is the authority for this?

Answer 22

S.15 TLA 1996
(A) intentions of person/s who created the trust
(B) purpose of trust
(C) welfare of any minor
(D) interests of any secured creditor of any beneficiary

Question 23

In which case concerning a dispute between a wife and a husband, did the court postpone the order for sale and allow her to remain in the property but require her to pay her husband rent and what was the reasoning for this?

Answer 23

Bernard v Josephs
Wife not earning enough to take out mortgage to buy out husband but also having difficulty in securing alternative accommodation

Question 24

Which case raises concerns over the protection of property rights as the dispute between a cohabiting couple with young children led to an indefinite postponement of sale of the house where she was not required to pay rent (low income and young children)? What did the court order provide for and what were the requirements?

Answer 24

Re Ever’s Trust - at any future point either party could request an order for sale but there had to be a material change in her circumstances

Question 25

In which case did the court hold that where four home owners jointly purchased a strip of land to stop future development there, where one wanted an order for sale as selling house it was refused because the intention for which it was acquired (to preserve the land) still existed irrelevant of whether the party lived there or not?

Answer 25

Re Buchanan-Wollaston’s Conveyance

Question 26

If an application for a court order under s.14 TLA 1996 is made by a trustee in bankruptcy what factors will the court consider and where are they located?

Answer 26

S.335A IA 1986
(A) interests of the bankrupt’s creditors
(B) if includes land with dwelling house:
(I) conduct of spouse or former spouse so far as contributes to bankruptcy
(II) needs and financial resources of spouse and former spouse
(III) needs of any children
(C) all circumstances of the case other than the needs of the bankrupt

Question 27

In which case did the court postpone a sale of the house of bankrupt for 5 years and why was this exceptional ruling likely reached?

Answer 27

Re Holliday - considered concerns of ex-wife and children but probably because there was evidence of collusion between ex-husband and creditors

Question 28

In which case concerning bankruptcy did the court order a short postponement of sale of property as the wife was pursuing a claim for negligence and was likely to succeed and then be self-sufficient?

Answer 28

Re Gorman

Question 29

In which case did the court hold that the voice of the bankrupt spouse would only be heard in exceptional cases?

Answer 29

Re Citro

Question 30

In which case did the court hold that in relation to exceptional circumstances concerning bankruptcy, exceptional means exceptional?

Answer 30

Begum v Cockerton [2015]

Question 31

Can you sever the joint tenancy at law? What is the authority for this?

Answer 31

NO - s.36(2) LPA 1925

Question 32

Why would you want to sever the joint tenancy in equity?

Answer 32

To negate the operation of the right of survivorship so that you can pass on your share in the property as you wish under an equitable tenancy in common

Question 33

Which case is authority for the fact that severance removes the right of survivorship but co-ownership continues?

Answer 33

Harris v Goddard

Question 34

Can you sever your share in the joint tenancy in a co-owned property by will?

Answer 34

No

Question 35

What is the authority for the fact that the severed share is quantified on the basis of equality irrespective of the initial contributions, subject to an express contrary intention?

Answer 35

Goodman v Gallant

Question 36

What must you do to sever a joint tenancy under the statutory method and what is the authority?

Answer 36

S.36(2) LPA 1925 - notice in writing, or such other clear acts

Question 37

Where is the statutory authority for the fact that severance by written notice is effective if sent by registered post to the address of the other joint tenants even if the notice was not received?

Answer 37

S.196(4) LPA 1925

Question 38

Which case is authority for the fact that sending written notice to sever by registered post is sufficient even when letter is intercepted before it reaches other JTs?

Answer 38

Re 88 Berkeley Road NW9

Question 39

If there are three JTs at law and A wishes to sever his share how are the beneficial interests held afterwards?

Answer 39

A - 33%

B and C - 66%

Question 40

What is authority for the fact that a petition under s.14 TLA 1996 is sufficient for severance?

Answer 40

Re Drapers Conveyance

Question 41

Which case is authority for the fact that there is no notice of severance by an application for ancillary relief under s.24 MCA 1973 as it is not sufficiently definite?

Answer 41

Harris v Goddard

Question 42

What are the three common law methods of severance and what is the authority for this?

Answer 42

Williams v Hensman (1861)

(1) an act by a JT operating under his own share
(2) severance by mutual agreement
(3) severance by course of dealing (mutual conduct)

Question 43

What sort of act would typically be acceptable to indicate that a JT is operating under his own share?

Answer 43

Selling the beneficial share or guaranteeing a mortgage on it

Question 44

In which case did the court hold that the fraudulent behaviour of a husband was sufficient to amount to act of a JT operating under his own share in order to sever?

Answer 44

First National Securities v Hegerty

Question 45

In which case did the fraudulent behaviour of the husband and the purchaser not lead to severance through a JT operating under his own share and what is the likely reasoning for this?

Answer 45

Penn v Bristol & West Building Society [1996]
Wife would have only been entitled to proportion upon severance but could have been entitled to whole as fraud so no severance

Question 46

Is bankruptcy an involuntary act of severance? Which case authority supports this?

Answer 46

Yes, it automatically severs the JT at equity (Re Pavlou (A Bankrupt))

Question 47

Which case is authority for the fact that an oral contract is sufficient for a mutual agreement to sever?

Answer 47

Burgess v Rawnsley

Question 48

In which case did the court hold that merely having negotiations is not enough to have a mutual agreement to sever, you need to have an agreement to terminate the JT?

Answer 48

Gore & Snell v Carpenter

Question 49

What were the two contrasting views on severance by mutual conduct in Burgess v Rawnsley?

Answer 49

Denning - needs to be made clear to the other party
Pennycuick - look for common intention rather than binding agreement (e.g. Walking away from negotiation where cannot agree on terms of severance is sufficient to sever)

Question 50

If one of the JTs is committed for homicide against another then what happens?

Answer 50

Automatic severance as cannot take the benefit of right of survivorship

Question 51

Where is the authority for the fact that the purchaser does not need to be concerned with the rights of beneficiaries once the purchase monies have been paid to two or more trustees?

Answer 51

S.16(1) TLA 1996

Question 52

What does s.2(1) LPA 1925 means?

Answer 52

Overreaching will take place provided that:
(A) there is a trust of land
(B) interests are capable of being overreach (I.e. Family rather than commercial)
(C) compliance with statutory requirements - s.27(2) LPA 1925 payment to two or more trustees

This allows the purchaser to take the property free from any of the beneficiaries’ rights

Question 53

In what type of land do you have overreaching?

Answer 53

Both - unregistered and registered land

Question 54

In which case did the mortgage payment to only one trustee mean that the wife’s beneficial interest was not overreached?

Answer 54

Williams & Glyn’s Bank v Boland [1981]

Question 55

In which case did the payment of mortgage money to 2 trustees overreach the parent’s equitable rights to the property?

Answer 55

City of London Building Society v Flegg

Question 56

What type of land do overriding interests occur in?

Answer 56

Registered land only

Question 57

What do you need for an overriding interest and what is the authority?

Answer 57

Sch 3 para 2 LRA 2002 - a proprietary right plus actual occupation and an absence of enquiry (I.e. Would occupation have been obvious on reasonably careful inspect of land? The vendor is obligated to answer enquiries when they arise)

Question 58

Which case is authority for the fact that a purchaser of unregistered land where overreaching of beneficial interests could occur is still obligated to make inquiry of the vendor and inspect the property in order to overreach any rights? What was the outcome of the case?

Answer 58

Kingsnorth Trust v Tizard - the mortgagee had constructive notice as failed to make proper inquiry as had no independent inspection of the land

Question 59

What is authority for the fact that normally, if a beneficiary has not registered their interest then it will be void against a purchaser of land?

Answer 59

S.29(2)(a) LRA 2002

Question 60

What is the principle from Kinch v Bullard?

Answer 60

Letter of severance sent by ordinary post to recipient’s home was valid notice of severance provided that it could be proved that the letter had arrived at the right address. It was not relevant that the addressee had not read it.

Question 61

Which case is authority for the fact that you cannot have severance by course of dealings where the agreement in principle leaves the possibility of re-opening negotiations or altering the course of dealings?

Answer 61

Gore and Snell v Carpenter

Question 62

Which case is authority for the fact that any written statement by a joint tenant either expressly indicating or implying that he wishes immediately to end the joint tenancy relationship will sever the joint tenancy, provided that the statement is received or deemed to be received?

Answer 62

Harris v Goddard

Question 63

What happened in Dennis v McDonald and what was the ruling?

Answer 63

Cohabiting couple bought house as tenants in common with equal shares. Mother left with two of five children due to violence of father. Order for sale refused as purpose of housing family still existed but father had to pay mother occupation rent as she was effectively excluded from occupying the property.