Co-ownership Flashcards
What effect did the LPA 1925 have on co-ownership titles that could exist?
Prior to the LPA: both tenancies could exist either at law or in equity
After the LPA: Legal co-owners must hold as joint tenants and the number of legal owners is restricted to 4
What is a joint tenancy?
- Can occur at both law and in equity
- Each person owns the whole interest in the land and have no defined share
- Regarded as one single owner
- 2 key principles: Four unities and the right of survivorship
What are the four unities?
-POSSESSION: No tenant can claim land exclusive to the others
-INTEREST: Interest of each tenant is the same (duration, nature etc)
-TITLE: Must claim title under same document or act
TIME: The interest of each joint tenant must vest at the same time
What is the right of survivorship?
On death, interest cannot be passed under will or intestacy.
What is a tenancy in common?
- Only the unity of possession is essential
- The tenants hold in undivided shares
- Can be held in unequal interest (e.g 60/40 split)
- When TIC dies, interest is passed under will/ intestacy
- Legal estate is still held under a joint tenancy
When will a Tenancy in Common in equity exist:
-Express declaration such as:
“to be divided between” - Fisher v Wigg
“share and share alike” - Heathe v Heathe
- If stipulated in the transfer deed
- When presumed by equity such as purchase money in unequal shares
- If the matter is silent then equity will follow the law (Legal title is JT then the beneficial title will be too) -Stack v Dowden
Severance of Joint Tenancies?
- Cannot be severed at Law s36(2) LPA 1925
- Principle of survivorship will no longer apply
- Property held in original shares
Methods of severance of beneficial JTs?
- ) s36(2) LPA 1925: Written Notice
- Doesn’t have to be any particular form - Re Draper’s Conveyance
- Must be an immediate desire to sever - Harris v Goddard
- Must show an intention to sever the joint tenancy -Gore and Snell v Carpenter
- Must be served on all tenants - Kinch v Bullard - ) Operation of Law - Murder
- ) Court order
Methods of severance of a beneficial JT as common law?
- ) If a JT alienates their interest (Bankruptcy, sale, mortgage application
- ) By mutual agreement
3) By mutual conduct or course of dealings
Purchasers of co-owned land
-Must ensure sale is effected by all the legal title owners
Sale by surviving co-owner
Unregistered Land:
-Surviving co-owner deemed to be able to pass good title
Registered Land:
-Not sure about this one tbh
What are the three types of trust pre 1996?
Bare trust: leave land to someone else - no powers of management
Settlement: similar to a bare trust but could contain interests
Trust for sale: imposed a duty to sell but a power to postpone sale
TOLATA 1996
Trust of Land and Appointment of Trustees Act 1996:
- Statutory trust of land imposed in the case of joint tenancies and tenancies in common
- s1(1) - definition of trust of land
- trust of land included express, implied resulting or constructive
Powers of trustees under TOLATA
s4: Power to either sell or retain the land
s6: Have all the powers of an absolute owner although may be excluded in the trust instrument
s7: Trustees may partition the land if they are of full age, absolutely entitled and consent
s9: Trustees may delegate any of their functions to any beneficiary if they are of age and entitled to an interest in possession
s10: Consent
s11: Trustees should consult beneficiaries as far is as practicable and consistent with the general interest
Occupation of Trust of Land
- Trustees may not unreasonably exclude any beneficiary from the land
s12: allows a beneficiary to occupy the land (except where land is unavailable for occupation - Chhokar v Chhokar - s13: Trustee may exclude/restrict entitlement to occupy land but must be reasonable
