Co-Ownership

Question 1

Tenancy in Common

Answer 1

Each co-owner owns a share, can be unequal in size, may be transferred inter vivos and will pass by testamentary disposition or on an intestacy to the next of kin of the deceased co-owner. Equity prefers a TIC by interpretation and presumption as well as in certain substantive contexts

Question 2

Joint Tenancy

Answer 2

Each coowner owns the whole and ownership is equal. Unless a severance has been effected, the principle of survivorship (jus accrescendi) applies. This means that a joint tenant upon death simply drops out of the ownership, the others equalize a greater interest.
Joint Tenancies must have : unity of possession, Unity of title (titles must be derived from same instrument), Unity of Interest ( interest must be the same as the others interests ex size, type, duration), Unity of Time (vesting must occur at the same time for all - ex A to B for life remainder in fee simple to C and the first child of F and D has no child, there cannot be a JT.
Severance occurs when one of these 3 additional unities is destroyed and converts a JT to a TIC

Question 3

JT but simultaneous deaths?

Answer 3

s5(2)(a) of WES - if circumstances make it uncertain which survived the other, it is deemed a TIC.

s10(2) of WES - if they dont die simultaneously, one dies and the other dies later but less than 5 days after the first, there is a formula which is applied and its effect stipulates a tenancy in common.

Question 4

Equitable rule (the rule courts apply today) - what type of co-ownership is favoured by courts?

Answer 4

Favours a TIC because JT is a gamble. look for words that suggest the ownership of shares as opposed to ownership of the whole. Look for share words “equally” “to share” . If those are there, then the intent is to hold separate shares, TIC. But NEED these words of share.
but note, statute goes further - presumes TIC unless contrary intent

Question 5

Statute Rule for Co-Ownership

Answer 5

S11 of the Property Law Act applies to both a transfer or a devise → both inter vivos and testamentary - but it only applies to LAND in fee simple. Perhaps includes a charge.

Stipulates that there should be a presumption of TIC unless a contrary intention appears in the instrument. (goes a step further).

Principle introduced by WES s 45 - If it is contemplated that there will be a physical division of the land then there will be a TIC

If you want to be rlly careful for JT, go and say “ with the right of survivorship”

Question 6

Re Bancroft, Eastern Trust Co. v. Calder et al (NSSC, 1936)

Answer 6

Ratio: Presumption of JT - but anything to slight indication of “equal shares” will create a TIC and divide the property.

Question 7

Winchester v McCullough (NBQB, 2000)

Answer 7

Ratio: words “equal shares” indicate TIC. JT has right of survivorship - word would be survivors instead of successors.
*NB legislation is different than s11

Question 8

Property Law Act RSBC 1996

Section 11

Answer 8

Tenancy In Common
S11
1 In this section, transferred includes a vesting by declaration of trust or order of court
2 If, by an instrument executed after april 20 1891, land is transferred or devised in fee simple, charged, or contracted to be sold by a valid agreement for sale in which the vendor agrees to transfer the land to 2 or more persons, other than personal representatives or trustees, they are TIC unless contrary intention appears in the instrument.
3 If the interests of the TIC are not stated in the instrument, they are presumed to be equal.

Question 9

Property Law Act RSBC 1996

Section 18

Answer 9

Rules for transfer and ownership to oneself
S18
1 A person may transfer land to himself or herself in the same manner as to another person, and, without restricting that power, a JT may transfer his or her interest in land to himself or herself.
2 A trustee or personal representative may transfer land to himself or herself in his or her personal capacity
3 A transfer by a JT to himself or herself of his or her interest in land, whether in fee simple or by a charge, has and is deemed always to have had the same effect of severing the JT as a transfer to a stranger
4 A registered owner may make a transfer directly to himself or herself jointly with another, and registered owners may make a direct transfer to one or more of their number either alone or jointly with another
5 An owner in fee simple or an owner of a registered lease or sublease may grant to himself an easement or a restrictive covenant over land that he or she owns for the benefit of other land that he owns in fee simple, or of which he is the owner of a registered lease or sublease but a grant under this subsection must be consistent with the interests held by him or her as a grantor and grantee at the time of the grant.

Question 10

Wills, Estates and Succession Act (March 31, 2014)

S45

Answer 10

s45 - If a gift of land in a will to 2 or more beneficiaries contemplates a physical division of the parcel of subdivision ro otherwise, the gift takes effect as a gift to the beneficiaries as TIC in proportion to their interests unless a contrary intention appears in the will.

Question 11

Equity has substantive features relevant to co-ownership

which are….

Answer 11

• Equitable presumption that a business partnership is held in common
• Equity will imply a TIC substantively if the parties have contributed unequally in the purchase price
• The parties may well be JT at law and as such wuld in law have equal shares but if their contribution has been in unequal proportions then equity will say whatever the position is at law, if you have contributed unequally u will get a TIC in proportion to contributions
• Equity uses TIC as a general remedial device. Focused on preventing unjust enrichment and the bull and bull case is the prime ex of this

Question 12

Bull v Bull (1955 eng)

Answer 12

The court applied a tenancy in common as an equitable remedy so the that son had no right to turn mother out.

Where 2 people are in possession of a property to which they have both substantially contributed, and there is a clear intention that both should have possession, even though only one name appears on the deed they are equitable tenants in common. Both are entitled to concurrent possession, use, and enjoyment of the land. When land sold, each will be reimbursed according to their contribution

Equity will impose in personam obligations in certain specific circumstances to ensure that a just result follows (in our system the remedy would be a partition)

Question 13

Where do we deal with sharing of profits?

Answer 13

Up to march 2014 sharing of profits in a coownership was dealt with in s71 of the estate administration act 1996. Now it is covered by the s13.1 Property Law Act 1996 from March 2014 as inserted by s248.1 WES

Question 14

Property Law Act s 13.1

Answer 14

1 Actions in the nature of the common law action of account may be brought and maintained by one joint tenant or TIC against the other as bailiff for receiving more than comes to that persons just share or proportion, and against the executor or administrator of the joing tenant or tenant in common.
2 The registrar or other person appointed by the court to inquire into the account
a) May administer an oath and examine the parties touching the matters in question
b) Is entitled for taking the account to receive the allowance that the court orders from the party that the court may direct.

Question 15

Spelman v Spelman (BCCA, 1944)

Answer 15

Ratio:Relations between co-owners: can ask to account if unfairly sharing profits, but not for labour. Can differentiate between pure rent (e.g. obtained from a rental suite jointly owned) and payment for services (as in this case where one co-tenant provides the labour but both own)
Howell thinks they can be a little more precise than what this case was

Question 16

Property Law Act 1996 ss 13 and 14

Answer 16

S13 In addition to the owners other rights and remedies, an owner who because of the default of another registered owner has been called on to pay and has paid more than the owners proportionate share of the mortgage money, rent, interest, taxes, insurance, repairs, a purchase money installment, a required payment under the Strata Property Act, or under a term or covenant in the instrument of title or a charge on the land, or a payment on a charge where the land may be subject to forced sale or foreclosure, may apply to the SC for relief under s14 against the other registered owners, one or more of whom is in default.

Court may order lien and sale
S14
1) On hearing an application under s13 the court may do one or more of the following:
a) Order that the applicant has a lien on the interest in land of the defaulting owner for the amount recoverable under subsection 2
b) Order that if the amount recoverable under (2) is not paid by the defaulting owner within 30 days after the date of service of a certified copy of the order on the defaulting owner or within another period the court considers proper, the defaulting owners interest in the land be sold under the rules of court governing sales by the court;
c) Make a further or other order, including an order that the applicant may purchase the interest in the land of the defaulting owner at the sale.
2) The amount recoverable by the applicant is the amount the defaulting owner would, at the time the application is made or repayment is tendered, have been able to contribute to satisfy the defaulting owner’s share of the original debt if it had been allowed to accumulate until that time
3) If there is a sale under this section, the transfer to the purchaser must be executed by the registrar of the court, and, on registration, passes title to the interest in land sold.
4) Surplus money received from the sale must be paid into court to the credit of the defaulting owner.

Question 17

Statute of Anne 1705

Answer 17

The old Common law rule of no obligation to give a statement of accounts was changed by Statute of Anne 1705. e.g. pure rents should be divided equally between JT’s or according to shares of TIC’s (or equally if an equitable TIC was imposed)

The accounting provided for in the Statute of Anne 1705 is now in the Estate Administration Act s.71 - where a co-owner can bring an action to account against another JT or TIC to determine if they have been receiving more than their just share or proportion of the profits

Question 18

Leigh v Dickeson (1884)

Answer 18

Expenses for which there is a common obligation on all co-owners (e.g. payment of mortgage or taxes). All co-owners must pay, so there can be immediately recovery of such an expense – now written into statute in s.13 and s.14 of Property Law Act (and see Bernard v. Bernard which said these section didn’t add anything substantive, just procedural)

Expenses with no common obligation:

(1) If made by one co-owner at request of the other co-owner: can be recovered immediately based on notions of implied agency, promise, or from business practices
(2) If not made at request of other co-owner i.e. a voluntary expenditure:
(a) If an option was given to the other co-owner to adopt (usually where an expenditure benefits all co-owners):
(i) if adopted by other co-owner then can be recovered immediately, but
(ii) if rejected by other co-owner then no contribution can be recovered
(b) If no option was given then at common law there is no recovery of a contribution (i.e. a TIC cannot charge another for cost of voluntary repairs/improvements if they didn’t give the other the option as to whether to do ahead with them so long as the property is enjoyed in common). However, by equity on partition, if expenses increased the value of the property then at Equity a contribution can be recovered since would be unjust for the other party to benefit from the increase in price without having contributed to those expenses. This was the situation in this case: D gave P no option as to whether she wanted the repairs/improvements performed, and therefore there is no remedy for D at this time (although there could be on partition).

At common law, owners could not compel other co-owners to pay cost of repairs or recover voluntary expenses

Question 19

Bernard v Bernard (1987, BCSC)

Answer 19

Ratio: Correct view is that in a partition action outside of ouster and bailor (contract) an occupying owner will not be charged for his occupancy unless he claims an allowance towards expenses. When that claim is made, you are asking equity to balance up, and equity will factor in an amount for exclusive occupation while the other parties were not in occupation.

Except in an ouster or express bailiff (contract), there is no right to charge an exclusively occupying co-owner with occupation rent (each co-owner is entitled to occupation of the whole – recall Spelman). However, if on a partition action an occupying owner claims an allowance for their expenses then under equity on partition they will be liable for occupation rent. This rule should apply in an application for sale under s. 14