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Land Law > Co-ownership > Flashcards

Co-ownership Flashcards

1
Q

What are the two types of concurrent co-ownership?

A
  1. Joint Tenancy

2. Tenancy in Common

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2
Q

What statutory trust did the Law of Property Act 1925 create?

A

Trust of sale

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3
Q

What is the effect of a trust?

A

It bestows a legal title on a trustee and an equitable title on a beneficiary

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4
Q

What rights do trustees have and not have with a legal title of land?

A

Legal title grants duties and powers of management but no right to enjoy the land.

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5
Q

Which two provisions of the LPA 1925 imposed a trust for sale when there was any express conveyance to more than one person?

A

ss34(2) and 36

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6
Q

Which two provisions of the LPA 1925 impose a trust of sale when there is a will expressly conveying land to more than one person?

A

ss34(3) and 36

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7
Q

Which Act has now abolished the imposition of a trust of sale?

A

Trusts of Land and Appointment of Trustees Act 1996

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8
Q

How does s205(1(xxix) LPA 1925 define a trust for sale?

A

An immediate binding trust for sale whether or not exercised at the request or with the consent of any person, and with or without a power of discretion to postpone the sale’

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9
Q

What is understood by the doctrine of conversion?

A

This relates to the trust of sale. As equity looks on done as that which ought to be done, the beneficiaries are said to have an interest in the purchase money of a property rather than an interest in the property itself even before it is sold.

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10
Q

What did s1(2)(b) TLATA 1996 do to trust of sale existing on 1 Jan 1997?

A

Converted them into trusts of land.

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11
Q

What is the effect of s4 TLATA 1996 on trusts of sale?

A

It discredits any express provision removing the right to postpone sale thereby allowing postponement for all trusts of sale whether the trusts of sale came about before or after TLATA 1996.

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12
Q

What do paragraphs 3 and 4 of schedule 2 TLATA 1996 do?

A

They have replaced ‘trusts of sale’ with ‘trusts of land’ in ss34 and 36 of LPA 1925 so anything caught by ss36 and 36 post-1 Jan 1997 is now a trust of land.

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13
Q

What is the effect of s3 TLATA 1996?

A

It abolishes the doctrine of conversion except in the circumstance where the testator died before 1 Jan 1997 and created a trust for sale by his will (s3(2).

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14
Q

Which provision defines the trust of land? How is it defined?

A

Section 1(1)(a) TLATA 1996 defines a trust of land as ‘any trust of property which consists of or includes land’

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15
Q

What does s1(2)(a) TLATA 1996 make clear?

A

That TLATA 1996 applies to all types of trusts of land eg express, implied, resulting, constructive, bare and trusts for sale.

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16
Q

What common feature do both joint tenants and tenants in common enjoy?

A

Unity of possession. Each co-owner is simultaneously entitled to possession of the whole land

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17
Q

What other unities must be present for there to be a joint tenancy?

A

Unity of title, interest and time

18
Q

Which case tells us that a joint tenancy cannot exist unless there are the four unities?

A

AG Securities v Vaughan

19
Q

How would you describe each of the four unities?

A
  1. Unity of possession - simultaneous possession of the whole property by each co-owner;
  2. Unity of interest - the freehold/leasehold must be the same duration
  3. Unity of title - all joint tenants must acquire their title under the same document
  4. Unity of time - the interest of each tenant must vest at the same time
20
Q

What is the effect of right of survivorship?

A

When one joint tenant dies his interest in land passes automatically to the other joint tenants.

21
Q

Can a will defeat the right of survivorship?

A

No, the right of survivorship occurs automatically on severance where a will has to be exercised. The right of survivorship comes first (Re Caines Deceased)

22
Q

Can tenancy in common ever be legal? Which provision gives the answer?

A

Section 1(6) LPA 1925 says legal title must always be a joint tenancy

23
Q

Which provision says that a legal joint tenancy cannot be severed to create a tenancy in common?

A

Section 36(2) LPA 1925

24
Q

What is the usual reason for severing a joint tenancy?

A

To end the right of survivorship

25
Q

What does s34(2) Trustee Act 1925 do?

A

It limits the number of trustees to four. If more than four are named the first four will become legal owners

26
Q

Which case tells us that when there is an express provision in a grant/deed saying whether a beneficial interest is a joint tenancy or tenancy in common that will prevail?

A

Pink v Lawrence

27
Q

Where there is no express declaration creating a joint tenancy or tenancy in common what kind of words might show an intention to create a tenancy in common?

A
  1. ‘equal shares’ (Payne v Webb)
  2. ‘share and share alike’ (Heathe v Heathe)
  3. ‘to be divided between’ (Fisher v Wigg)
  4. ‘equally’ (Re Kilvert Deceased)
28
Q

What is presumed by common law if there is no express declaration or words of severance?

A

Joint tenancy

29
Q

What two equitable presumptions are there against a joint tenancy?

A
  1. Purchase money is provided in unequal shares (Bull v Bull)
  2. Businesses (Jones v Craddock)
30
Q

Which case tells us the shares of tenants in common will be equal following severance?

A

Goodman v Gallant

31
Q

Which case tells us severance must occur inter vivos and cannot be done by will?

A

Re Caines Deceased

32
Q

What mode of severance was introduced by s36(2) LPA 1925?

A

Written notice

33
Q

How must written notice to sever be served to be valid?

A

It must be to all the other joint tenants (s36(2) LPA 1925) stating the unequivocal and immediate intention to sever. It may be served in person or by registered post (s196(4) LPA 1925) to the ‘last known place of abode or business’ (s196 LPA 1925). If the post is returned undelivered it shall not be served (s196(4)).

34
Q

How was written notice to sever said to have been given in Re Drapers Conveyance?

A

By the wife’s divorce summons and affidavit

35
Q

How may we distinguish Harris v Goddard from In re Drapers Conveyance?

A

In Harris v Goddard the divorce petition contained an intention to adjust the interests of the property some time in the future. It did not show an unequivocal and immediate intention to sever. Therefore there was a joint tenancy.

36
Q

Which case tells us that joint tenants cannot agree to oust s36(2) LPA 1925 and the possibility of severance?

A

Grindal v Hooper

37
Q

What does the case of Kinch v Bullard clarify about serving written notice to sever?

A
  1. By ‘given’ written notice s36(2) does not mean it has to be received as long as it is left at the last abode or business.
  2. Written notice cannot be revoked once it has been served.
38
Q

Section 36(2) LPA 1925 says that severance may not only be effected by express words but also by other acts or things. Which case tells us what acts or things may sever a beneficial joint tenancy?

A

Williams v Hensman

39
Q

In what three ways did Williams v Hensman say a beneficial joint tenancy could be severed?

A
  1. Acts on an own share;
  2. Mutual agreement;
  3. Mutual conduct
40
Q

What other way act from those mentioned in Williams v Hensman could also sever a joint tenancy?

A

Homicide

41
Q

What five different acts on your own share could effect severance of a joint tenancy?

A
  1. Total alienation eg sale or gift (Ahmed v Kendrick)
  2. Partial alienation eg mortgage (First National Securitires Ltd v Hegerty)
  3. Involuntary alienation eg bankruptcy (Re Gorman)
  4. A contract to alienate (Brown v Raindle)
  5. Commencing litigation (unlikely given Nielsen-Jones v Fedden says litigation can be revoked)

Land Law (9 decks)

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