Co-Ownership Flashcards
Co-Ownership
- Joint Tenancy
2. Tenancy in Common
The Four Unities
Need all four to establish a joint tenancy.
- Time: All the interests of all co-owners should vest at the same time.
- Title: All the co-owners should have acquired their title by the same means. E.g. the same document.
- Interest: Interests of all co-owners must be of same duration, nature and extent.
- Possession: Equally entitled to possession of the whole land.
Right of Survivorship
Jus Accrescendi
On the death of one joint tenant, the remaining joint tenants obtain the interest of the deceased.
LPA 1925 S.34 (1)
S.34 (1) of LPA 1925
Abolished tenancy in common.
Advantages:
- Take advantage of overreaching machinery.
- Tenancies in common created in equity.
- Easier for purchasers to check vendors title - simplifies sale proceeds.
- Limits number of trustees to the first 4 registered.
Severance
The act of converting a joint tenancy to a tenancy in common. It removes the persons individual interests from the whole - only at equity.
- Notice in writing.
- Personal Estate
- Forfeiture.
3 Ways of Severance
- Notice in Writing:
Simplest - no prescribed form. Must have a clear expression of severance. Must be served on all JTs. - Personal Estate
- Williams v Hensman Test - Forfeiture
Should one tenant kill the other the right of survivorship will not operate.
Test in Williams v Hensman
- An act… operating upon own share.
- Disposing of share through sale. Destroys title.
- Cannot sell legal estate. Even after sale, the trustee will hold the legal estate. - Mutual Agreement
- Express or inferred from conduct. Burgess v Rawnsley.
- Principle that an unenforceable agreement can serve as evidence of common intention to sever was confirmed in Hunter v Babbage. - Any course of dealing which shows that the interests were all mutually treated as constituting a tenancy in common.
Burgess v Rawnsley [1975]
Two partners jointly purchased a house JT but the female partner never moved in. The partners orally agreed that the females share would be sold to the male partner.
Issue: did this agreement sever JT?
Decision: No
Reasoning: An agreement to sever, to effect severance, must be irrevocable and must be accompanied by the mutual intent.
Joint Tenancy
Owners are not regarded as having “shares” in the land but as together owning the whole estate. Each co-owner is treated as being entitled to the whole of that kind.
No distinct shares and single co-owner can claim any greater right.
Land is treated as if it is owned by one person and all JT’s share that ownership.
Equality is the keyword in JT.
Tenancy in Common
When 2+ people own land under the Tenancy in Common it is said that they hold an ‘undivided share in land’ even though the land at present is undivided and treated as a single unit.
Tenant owns a quantifiable share in it, which can be realised if and when property is sold.
Unity of Possession only!
Equity only!!
How can a tenancy in common of a beneficial interest created?
Express Declaration:
Conveyance or transfer to the co-owners may make express provision as to the way in which they are to hold the beneficial interest.
No Express Declaration:
Equity generally follows the law. If legal estate was held on JT, equitable interest would also be held on a JT.
Situations which equity regards as unfair that the parties had intended to apply. They would be held as tenants in common.
-Rebuttable by showing the beneficial interest as joint tenancy despite obvious disadvantages.
Equitable Presumption of Tenancy in Common
- Unequal Contributions:
Unequal amounts to the purchase price, equity finds it unfair to impose upon them the equality of the JT and the effects of the right of survivorship, for it might be that the tenant who has contributed least may live the longest. - Property Belonging to Business Partners:
The right to survivorship appears inappropriate in equity even in the case of equal contributions. Equity favours Tenancy in Common here. - Estate/Interest Granted to Secure a Loan:
- 2+ people lend money. Beneficial interest is secured by a loan.
Stack v Dowden
Registered as JTs. Wife served notice of severance. Husband obtained a court ordering requiring equal division. Wife appealed. Held 65% to wife.
- Rebutted presumption of unequal contributions.
House of Lords - rejected presumption and has since been confirmed in Jones v Kernott.
- Did they intend to have unequal shares in the beneficial interest?
- What size did they intend those shares to be?
Jones v Kernott
Property and mortgage held in joint names.
J remained in the house with the children paying for all bills etc. K paid nothing towards this and little in maintenance.
Pair agreed to cash in life insurance policy and split the proceeds, this allowed K to buy a new property where he continued to live.
Court had consideration to:
- Length of separation
- Significant financial contributions of J.
- Equal division of life insurance policy.
90% to Jones.
10% to Kernott.
