Co-ownership

Question 1

Which acts deal with legal estate being held as joint tenants at law under a trust of land

Answer 1

s1(6) LPA 1925 -

s34(2) LPA 1925 - Trustees of land

s36 LPA 1925 - Joint tenancies

TLATA 1996 - Trusts of Land and Appointment of Trustees Act

Question 2

A case that shows evidence of equitable ownership as tenants in common

Answer 2

Malayan Credit v Jack Chia MPH [1986]

Lessees of business presumed to hold property as tenants in common in equity

Question 3

The 4 unities for a joint tenancy to exist in equity

Answer 3

Possession - Bull v Bull - Each entitled to possession of land and to use and enjoy it

Interest - Each tenant has the same interest in extent, nature and duration

Title - All co-owners acquire title under the same document

Time - Co-owners acquire interest at the same time

Question 4

Which unity is required for a tenancy in common to exist in equity

Answer 4

Possession

There is no right of survivorship

Cannot exist at law - s1(6) and s36 LPA 1925

Question 5

What is the equitable maxim in co ownership

Answer 5

Equality is Equity

Question 6

Presumptions on how a property is held in equity

Answer 6

Joint tenants - 4 unities are satisfied and there is no express declaration of severance and parties contributed equally

Tenants in common - if 2 or more purchase in unequal shares

Question 7

How can an equitable interest be severed

Answer 7

Written notice - s36(2) LPA 1925 - notice given to all parties and shows sufficient wish to effect immediate severance.

Destruction of 4 unities - joint tenant acts on own share

Consent of other tenants not required

Question 8

2 cases showing effect of severance in equity

Answer 8

Re Drapers Conveyance - notice can be in any form

Harris v Goddard - served on all joint tenants

Question 9

Examples of destruction of 4 unities

Answer 9

Sale
Mortgage 
Bankruptcy
Homicide
Mutual agreement

Question 10

What is the effect of a mortgage on share of one tenant

Answer 10

Does not affect legal title

Appear to be severance of equitable title

Question 11

Can bank enforce a sale?

Answer 11

Anyone interested in property can apply to court for an order for sale

s14 TLATA 1996 - application to court to order sale

s15 TLATA 1996 - court consider factors including welfare of any children and interest of any lender. Purpose of trust

Likely postpone sale for no longer than a year

Question 12

Name a case when an order for sale was made by a bank

Answer 12

Mortgage Corporation v Shaire [2001]

Court held rights of secured lender would not rank about other factors of s15 TLATA 1996

Question 13

Name a case where needs of child were considered in a TLATA claim

Answer 13

Edwards v Lloyds TSB [2004]