Co-ownership

Question 1

‘Joint tenancy’ definition

Answer 1

The ‘perfect’ form of ownership. Method of ownership where the owners are not regarded as having ‘shares’ but as together owning the whole estate. Inseparable group owner.

Question 2

‘Four unities’ must be satisfied for a joint tenancy to exist:

Answer 2

1. Time
2. Title
3. Interest
4. Possession

Question 3

Time

Answer 3

This unity requires that the interests of all the co-owners should be acquired at the same time.

Question 4

Title

Answer 4

Co-owners should all have acquired their title by the same means, e.g. all from the same document.

Question 5

Interest

Answer 5

The interests of all the co-owners must also be identical. Each interest must be of the same nature and extent.

Question 6

Possession

Answer 6

Co-owners must be equally entitled to the possession of the whole land.

Question 7

Right of survivorship

Answer 7

Jus accrescendi. Since a joint tenant does not have a distinct share in the co-owned land, his interest will not pass on intestacy or by will. The remaining joint tenants obtain the interest of the deceased. Natural result of regarding joint tenants as a kind of unified and indivisible group.

Question 8

Joint tenancy now the only form of legal ownership

Answer 8

Before 1926, joint tenants and tenants in common. LPA 1925, s. 34(1) provided tenancies in common of legal estate could no longer be created.

Question 9

Trustees informaiton

Answer 9

To prevent a trust having an inordinate number of trustees, the Trustee Act 1925, s. 34(2), limits the number of trustees to a maximum of four, and provides that where more than four are named, the property vests in the first four listed.
LPA 1925, s. 1(6) provides that a legal estate in land cannot be held by an ‘infant’.

Question 10

Severing a joint tenancy

Answer 10

A relationship which begins as a joint tenancy need not continue as one, it is possible for a joint tenant to sever the tenancy of the beneficial interest (not the legal estate).

Question 11

Differences between joint tenancy and tenancy in common

Answer 11

1. ‘Four unities’ are not required - tenancy in common is not a ‘perfect’ relationship of co-ownership, only one unity is required, possession.
2. Notional shares and no rights of survivorship - when one tenant in common dies, the remaining co-owners have no right of survivorship. The deceased’s shared in the property forms part of his estate and will pass by will.

Question 12

Equitable presumption of a tenancy in common

Answer 12

1. Unequal contributions - if co-owners contributed different amounts, unfair to impose on them the equality of joint tenancy and the R.o.S.
2. Property belonging to business partners.
3. Estate or interest granted to secure a loan.

Question 13

Equitable presumption of a beneficial joint tenancy in the family home

Answer 13

Stack v Dowden [2007], House of Lords adopted a new approach to ‘domestic property’.

Question 14

Methods of severance source:

Answer 14

Severance may be effected in a number of ways, set out in TOLATA 1996, Sch. 2 para 4(3).

Question 15

Service of the written notice

Answer 15

Notice must be served on all the joint tenants (of legal estate, but maybe beneficial too) Kinch v Bullard, by leaving it at their last known address or posting by registered/recorded delivery (LPA 1925, s. 196(3)/Recorded Delivery Service Act 1962, s. 1 and Sch. 1, para 1).
Once notice is served, is effective even if owner does not receive it - Re 88 Berkeley Road NW9 [1971].
Written notice doesn’t have to be in any particular form, as set out in Re Draper’s Conveyance.
Must show an immediate desire to server - Harris v Goddard [1989].

Question 16

‘Such acts or things as would, in the case of personal estate, sever the tenancy in equity.’

Answer 16

‘An act… operating upon his own share’:
Sale: Williams v Hensman (1861) - disposing of one’s own interest in such a way to sever it from the joint property, through sale. Creates severance because destroys one of the unities (title).

Bankruptcy: Re Dennis [1993]. Transfers the bankrupt’s interest to to the trustee in bankruptcy.

Mortgage: cause alienation when one joint tenant mortgages an interest in the property. Acting alone, only affects his or her own equitable interest. In First National Securities v Hegarty [1984], Bingham J held that the same effect occurred where signature forged.

Mutual agreement
Burgess v Rawnsley [1975] - oral agreement by one J.T to purchase the share of the other had effected a severance (parties were thinking in terms of ‘shares’).

‘Any course of dealing which shows that the interests of all were mutually treated as constituting a tenancy in common’
Nielson-Jones v Fedden - dealt with use and not ownership of the proceeds of sale. Also no firm agreement could be drawn from the parties’ negotiations.

Question 17

Forfeiture as a result of homicide

Answer 17

In a tenancy in common, the killer could stand to inherit a share of the deceased’s property, but s. 46 of the Administration of Estates Act 1925 states that the estate will be disposed as though the killer had died immediately before the victim.
New Zealand case of In the Estate of Hall [1914] also forbids this.

Question 18

Protecting an interest in property after severance

Answer 18

Before severance, the last surviving joint tenant would have become solely entitled to the property by right of survivorship. To avoid any risk of survivor concealing severance, it must be noted on the title.
Unregistered land - done by endorsing a memorandum of severance on the original conveyance to the joint tenants.
Registered land - restriction placed on the register of title.

Question 19

Selling against the wishes of the others

Answer 19

The co-owner would have to seek an order for sale form the court under TOLATA 1996, s. 14.

Question 20

Ending co-ownership

Answer 20

1. Partition - where land is sufficiently extensive that it may prove convenient for the owners to divide the land, TOLATA 1996, s. 7(1).
2. Sale of the property and division of the proceeds - by agreement or under application of the court (s. 14).
   S. 15 outlines some factors to be considered before sale, such as the purpose for which the property is held, Jones v Challenger [1961[ - extinction of the matrimonial purpose.

Question 21

Effect of express declaration:

Answer 21

Such a declaration is conclusive of severing the joint tenancy in equity. Described in ‘words of severance’, anything that suggests the owners hold shares in the property, rather than a sole group owner.
‘Share and share alike’ - Heathe v Heathe.
‘To be divided between’ - Fisher v Wigg’.

Question 22

Statute for disputes, statute for factors to be considered, cases:

Answer 22

Resolving disputes, TOLATA s. 14.
Resolving disputes, TOLATA s. 15.

Purpose for which property is held
Re Buchanon-Wollaston: order of sale ought not to be given as the covenant’s express purpose was to prevent one owner from the selling the land without the others’ consent, and an order of sale would be undermining this purpose.

Welfare of minor occupying
Re Evers’ Trust: House bought as matrimonial home. Purpose of trust would continue until the child of the relationship reached 18.

Interests of secured creditor
Mortgage Corp v Shaire: secured creditor will get priority.

Question 23

Application by a trustee in bankruptcy:

Answer 23

Re Citro: lenders’ appeal allowed, to sell the property. Only prevented in exceptional circumstances, and the ‘usual melancholy consequences’ of bankruptcy do not apply.