Co-Ownership

Question 1

AG Securities v Vaughan

Answer 1

Ratio: To be JTs, all 4 unities must be satisfied - 1. Possession - no tenant can be excluded from any part of the land. 2. Interest - each tenant has the same estate. 3 Time - Each tenant’s interest vests at the same time. 4. Title - all tenants acquire title in the same document.

Question 2

Re Caines

Answer 2

Ratio: In a JT, ownership passes by survivorship, not by will as wills operate after death whereas survivorship takes place on death.

Question 3

Pink v Lawrence

Answer 3

Ratio: The presumption of JT can be rebutted by an express declaration to hold land as TiCs.

Question 4

Payne v Webb

Answer 4

Ratio: ‘In equal shares’ = words of severance.

Question 5

Heathe v Heathe

Answer 5

Ratio: ‘Share and share alike’ = words of severance

Question 6

Fisher v Wigg

Answer 6

Ratio: ‘To be divided between’ = words of severance

Question 7

Re Kilvert deceased

Answer 7

Ratio: ‘Equally’ = words of severance

Question 8

Bull v Bull

Answer 8

Ratio: If purchase money is provided in unequal shares, the purchasers are presumed to take as tenants in common in equity in proportion to their respective contributions.

Question 9

Stack v Dowden

Answer 9

Ratio: In family home cases, the presumption of tenancy in common arising from unequal purchase contributions will not apply unless there is evidence to the contrary.

Question 10

Jones v Kernott

Answer 10

Ratio: Confirmed the decision in Stack v Dowden - In family home cases, the presumption of tenancy in common arising from unequal purchase contributions will not apply unless there is evidence to the contrary.

Question 11

Lake v Craddock

Answer 11

Ratio: There is a presumption of tenancy in common in commercial situations.

Question 12

Harris v Goddard

Answer 12

Ratio: ‘Severance…is the process of separating off the share of a joint tenant, so the concurrent ownership will continue but the right of survivorship will no longer apply. The parties will hold separate shares as tenants in common’.

Facts: A divorce petition did not constitute written notice of severance as it did not convey sufficient desire to sever immediately.

Question 13

Re Draper’s Conveyance

Answer 13

Ratio: A divorce petition can demonstrate intention to sever a JT if immediate and irrevocable.

Facts: Divorce petition requesting sale of home immediately was held to amount to written notice of severance.

Question 14

Quigley v Masterson

Answer 14

Ratio: Court proceedings can be sufficient notice if

Facts: A couple had lived together as Its. After the relationship ended, Mr P instructed his solicitors to serve a severance notice upon Mrs M. They failed to do this properly. Mr P died and Mrs Q, his daughter, tried to argue that the JT had been severed by mutual conduct. Court held that it had been severed by Mrs M’s application to the Court of Protection proceedings made during his lifetime which made it clear that she treated MR P’s share as 50%.

Question 15

Williams v Hensman

Answer 15

Ratio: ‘Such other acts or things’ (s.36(2) LPA 1925) include an act on the individual’s share, mutual agreement and mutual conduct.

Question 16

Kinch v Bullard

Answer 16

Ratio: Once notice of severance has been served int cannot be revoked.

Question 17

Ahmed v Kendrick

Answer 17

Ratio: Example of severance by total alienation.

Facts: Severance was held to have occurred when the husband sold the jointly owned house by forging his wife’s signature on both the contract and the registered transfer.

Question 18

Penn v Bristol and West Building Society

Answer 18

Ratio: Example of no severance by total alienation.

Facts: There was no severance hen the purchaser colluded in the forgery by the husband of his wife’s signature on the conveyance.

Question 19

First National Securities Ltd v Hegerty

Answer 19

Ratio: Example of partial alienation.

Facts: Husband purported to mortgage jointly owned property by forging the wife’s signature. Held to be a charge on his equitable interest only.

Question 20

Re Gorman

Answer 20

Ratio: Bankruptcy is involuntary alienation - severs JT.

Facts: A husband and wife were co-owners of matrimonial home. Wife had in effect paid for the house but there was a declaration that they were to hold as JTs. Even though it wasn’t signed the courts held that they were JTs beneficially and that upon the husband’s bankruptcy, the trustee was entitled to half of the value of the house.

Question 21

Brown v Raindle

Answer 21

Ratio: If a JT enters into a specifically enforceable contract to dispose of their interest in a property, that will be alienation as equity looks upon as done, that which ought to be done.

Question 22

Gore and Snell v Carpenter

Answer 22

Ratio: For severance by mutual agreement to occur, there must be a point at which there is an agreement.

Facts: Mr and Mrs Carpenter owned two properties as beneficial Its, occupying one as their home. When they divorced, Mrs C went to live in the other property. Between July 1986 and Mr C’s death in early 1987, negotiations took place as to division of assets. A final agreement was never reached and no notice of severance was served. Held that there had been no severance.

Question 23

Davis and Another v Smith

Answer 23

Ratio: A mere agreement to put a jointly owned property on the market does not sever a JT, must be indication that sale proceeds would be divided.

Facts: Mr and Mrs Smith bought a house as beneficial JTs. When they divorced, they agreed that the house would be sold. In a meeting their solicitors agreed that the proceeds of the endowment policy would be paid to Mr Smith and the ‘lion’s share’ of the proceeds of the sale would be paid to Mrs Smith. Held to be severed.

Question 24

Greenfield v Greenfield

Answer 24

Ratio: Physical division of property does not amount to severance.

Facts: Parties were content with right of survivorship continuing to operate between them.

Question 25

Carr v Isard

Answer 25

Ratio: JT cannot be severed by mutual wills unless there is clear common intention to sever.

Facts: The two wills were slightly different and so there was no severance.

Question 26

Re Woolnough (Deceased)

Answer 26

Ratio: JT cannot be severed by mutual wills unless there is clear common intention to sever.

Facts: Brother and sister executed wills giving each other a life interest in their share of the property on death. Held that both wills contained clear instructions that life interests in a ‘share’ be given, which was inconsistent with a JT. Indicated agreement to hold as Its and amounted to severance.

Question 27

Dennis v McDonald

Answer 27

Ratio: A co-owner may be ordered to pay occupation rent to the other co-owner who has been ousted from the property. Where the remaining co-owner pays mortgage interest payments on behalf of the ousted co-owner, those payments may count as their occupation rent.

Question 28

Rodway v Landy

Answer 28

Ratio: Example of resolution of co-ownership by dividing the property.

Question 29

The Mortgage Corporation v Shaire and others

Answer 29

Ratio: s.15 has changed the law and the court now has greater flexibility. Old law should be treated with caution.

Question 30

Bank of Ireland v Bell

Answer 30

Ratio: The courts often give significant weight to the interests of secured creditors.

Facts: Despite the property being purchased as a family home, and despite the fact that the wife and her son could still use the property for that purpose, the court gave precedence to the interests of creditors.

Question 31

First National Bank v Achampong

Answer 31

Ratio: The courts often give significant weight to the interests of secured creditors.

Facts: Court ordered a sale even though the wife, her children (one of whom was handicapped) and grandchildren lived in the property.

Question 32

Putnam and Sons v Taylor

Answer 32

Ratio: The courts often give significant weight to the interests of secured creditors.

Facts: Secured creditor was given priority over factors such as the poor health of the husband.

Note: sale was postponed for 5 months to allow occupiers to sell the property themselves before sale was enforced.

Question 33

Fred Perry v Genis

Answer 33

Ratio: The courts often give significant weight to the interests of secured creditors.

Facts: Interests of creditors took precedence despite the fact that two children’s education was disrupted.

Note: sale was postponed for 12 months to give the family time to relocate.

Question 34

Dennis v McDonald

Answer 34

Ratio: Instead of ordering a sale, the court may order payment of occupation rent.

Facts: A co-habiting couple bought a house as tenants in common in equal shares. They had five children. Due to the man’s violence, the woman left the house with the two younger children. The man continued to reside in the house with the two older children. Rather than order a sale that man had to pay occupation rent to the woman that amounted to half a fair rent for the premises.

Question 35

Ali v Hussein

Answer 35

Ratio: Court may postpone a sale in some circumstances.

Facts: Court postponed a sale to allow the other co-owners to buy out the co-owner who wished to be released.

Question 36

Re Mott

Answer 36

Ratio: Example of exceptional circumstances for the purpose of s.335A(s) Insolvency Act 1989

Facts: An elderly lady who had lived in her house for over 40 years was allowed to remain, notwithstanding that her son’s trustee in bankruptcy had applied for a sale of the property. Sale was postponed until after her death.

Question 37

Re Raval

Answer 37

Ratio: Example of exceptional circumstances for the purpose of s.335A(s) Insolvency Act 1989

Facts: A short postponement of an order for sale was allowed where there was a paranoid schizophrenic spouse who could have been seriously affected by a move.

Question 38

Re Bremner

Answer 38

Ratio: Example of exceptional circumstances for the purpose of s.335A(s) Insolvency Act 1989

Facts: Bankrupt was suffering from terminal cancer and had 6 months to live. Sale was postponed for 3 months after the bankrupt’s death to allow the elderly spouse to care for him in their own home.

Question 39

Re Haighighat (A Bankrupt)

Answer 39

Ratio: Example of exceptional circumstances for the purpose of s.335A(s) Insolvency Act 1989

Facts: Sale order postponed for three years as the eldest child of the bankrupt lived in the property and was seriously disabled with cerebral palsy and required continuous care.

Question 40

Barca v Mears

Answer 40

Ratio: ss.335A (2) and (3) are compatible with ECHR.

Question 41

Donohoe v Ingram

Answer 41

Ratio: ss.335A (2) and (3) are compatible with ECHR.

Question 42

Ford v Alexander

Answer 42

Ratio: ss.335A (2) and (3) are compatible with ECHR.

Question 43

Goodman v Gallant

Answer 43

Ratio: Severance creates an equal share, unless there is an express intention otherwise.

Question 44

Re 88 Berkley Road

Answer 44

Ratio: A letter sent by recorded delivery is effective unless returned through the Post Office as undelivered. Irrelevant whether it has been read.

Facts: Two women lived together as JTs. When one announced she planned to marry, the other decided to sever JT. Notice of this was sent by recorded delivery to the property. The severing tenant signed for the letter but did not show it to the other. Court held that severance had been effective.

Question 45

Kinch v Bullard

Answer 45

Ratio: Once notice of severance is served, it cannot be revoked.

Facts: Mr and Mrs J were Its. When their relationship deteriorated, Mrs J served notice of severance on 3rd August. Mr J suffered a heart attack on 5th August and was in hospital when letter arrived. Mrs J destroyed the letter when it arrived as it now seemed likely that he would pre-decease her. When Mr J died it was held that there had been severance. It could not be revoked by destruction of the notice once it had been served.

Question 46

Nielson-Jones v Fedden and OThers

Answer 46

Ratio: Inconclusive negotiations do not amount to severance.

Facts: Mr and Mrs Todd were legal and beneficial JTs of their home. Mrs T and the children moved out but Mr T stayed. They signed a memorandum that he would sell the house. They each took £200 from the deposit paid by the buyer. No final agreement as to their finances was reached. Mr T died and Mrs T appointed Fedden as a second trustee to ensure the sale went through. Mrs T argued that she took the property by survivorship. Judge held there had been no severance as the memorandum did not amount to notice in writing and an agreement had never been reached.

Question 47

Burgess v Rawnsley

Answer 47

Ratio: Common intention to sever can be inferred even if negotiations break down.

Facts: Mr Honick and Mrs Rawnsley bough a house, comprising two separate flats, as beneficial JTs, each paying half of the purchase price. They never married or lived together. In 1968, Mrs R orally agreed to sell her share to Mr H for £750, but then changed her mind and wanted £1000. Mr H died before anything was resolved. Mr H’s daughter argued that there had been severance. Held that there was severance.

Question 48

Hunter v Babbage

Answer 48

Ratio: Reaching an agreement to deal with property in a way that amounts to severance is sufficient to sever.

Facts: Mr Babbage and Mrs Allen owned their home as beneficial JTs. Mrs Allen left and in the course of divorce proceedings, applied for an adjustment order. She suggested that the fairest thing would be to split the proceeds of sale. Consent order was not finalised when Mr B died. Held that there was severance as a result of the making of the agreement. The severance did not depend on the agreement being carried out, it operated independently.

Question 49

Re Buchanan-Wollaston’s Conveyance

Answer 49

Ratio: If purpose for which co-owned property was bought is capable of continuing, it is unlikely that a sale will be ordered.

Facts: In 1928, four people bought a piece of land between their houses and the sea to ensure that their sea view was reserved. One owner sold the house and wanted to land sold so he could realise his share. The other owners did not agree. Held that the purpose was capable of continuing and so a sale was not ordered.

Question 50

Jones v Challenger

Answer 50

Ratio: If a purpose is not capable of continuing, a sale will likely be ordered.

Facts: Mrs Jones and Mr Challenger were formerly husband and wife, they owned their leasehold property as beneficial JTs. When Mrs J left Mr C, she applied for a sale order. At first instance, the judge refused to grant the order. On appeal it was granted. as the home was purchased as a matrimonial hoe and that purpose no longer existed.

Question 51

In Re Evers’ Trust

Answer 51

Ratio: If purpose for which co-owned property was bought is capable of continuing, it is unlikely that a sale will be ordered.

Facts: A couple bought a property together as beneficial JTs. They lived together there. When they separated, the father applied for an order for sale. Judge at first instance ordered a sale but postponed it until the couple’s child reached 16. On appeal, the Court of Appeal refused to order a sale.

Question 52

Re Citro

Answer 52

Ratio: In bankruptcy, the interests of the creditors will usually prevail.

Facts: Two brothers were declared bankrupt. Their only assets were their houses which they held as JTs with their wives. Domenico was separated from his wife, who lived in their home with their three children. Carmine still lived with his wide and three children. Trustees in bankruptcy applied for orders for sale of the properties. At first instance it was declared that the trustees amounted to a half share in each property. A sale was ordered but postponed in each case until the youngest child reached 16 to take account of their educational needs. On appeal, the postponement was reduced to 6 months.