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Land Law > Co-Ownership > Flashcards

Co-Ownership Flashcards

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1
Q

Whenever land is co-owned a trust is imposed by statute

A

s. 34 LPA 1925
- this known as a trust of land
- this separates legal and equitable title to the land between the trustees and the beneficiaries

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2
Q

Expressly creating a trust of land

A
  1. two or more people buy the land
  2. A sole owner declares in writing that they now hold the land on trust for someone else (s. 53)
  3. A transfer of legal title to two or more people
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3
Q

Expressly creating a trust of land through aquisition

A

Lloyds Bank v Rosset

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4
Q

Variation or quantification dispute

A

Stack v Dowden
- Still unknown in reality if they apply for acquisition as opposed to declaration
Barnes v Phillips
- obiter says it’s the same

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5
Q

Impliedly created Trusts of land

A 
- no need for writing s. 53 LPA 
Three Ways of impliedly creating a trust of land 
- Resulting Trust 
- Constructive Trust 
- Proprietary Estoppel
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6
Q

Resulting Trust

A

Remedy: a proprietary share
The share of your interest is directly proportional to the share of the property
- best for someone who paid more for the property
- Dyer v Dyer

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7
Q

Resulting Trust. Need to look for:

A
  • Intention
  • Payment
  • Contribution
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8
Q

RT: Intention

A
  • presumption of intention from the payment of the money.
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9
Q

RT: Payment

A

of money or equivalent

- Mumford v Ashe

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10
Q

RT: Contribution

A

To the purchase price at the time or via mortgage

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11
Q

Mortgage value count’s as RT contribution

A

Laskar v Laskar

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12
Q

Ancillary obligations do not count as RT contribution

A

Curley v Parkes

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13
Q

RT contribution does not include normal household costs

A

Wadziki v Wadziki

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14
Q

The essence of a resulting trust is that you get what you paid for:

A

More usual to have an RT in a domestic situation
- Stack v Dowden
No resulting trust with housewives - they don’t pay
- Burns v Burns

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15
Q

Constructive Trust

- Common Intention Constructive Trust (CICT)

A

Shared intention of the owner and the claimant or the two parties to the existing
Remedy: a proprietary share

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16
Q

The share of a CICT is related to the agreement made

A

Best for someone who has been mislead

- Midland Ban v Cooke

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17
Q

To establish a CICT you need

A
  • Common Intention
  • Reliance
  • Detriment
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18
Q

Common Intention

A

Inference of a common intention can be from the whole course of the parties dealings.
- Stack v Dowden

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19
Q

Four Ways to establish a CICT

A
  • Express Assurances
  • Inferred Common Intention
  • Stack v Dowden
  • x
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20
Q

CICT: Express Assurances

A

Verbal assurances from the legal owner to the claimant

Lloyds Bank v Rosset

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21
Q

CICT express assurances can include

A

statements by the defendant about the property
- ‘this house is as much yours as mine’
even if they are lying
- ‘I would give you my house if my brother would let you’

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22
Q

CICT express assurance claims

A

usually from a claimant of a bigger interest or share of the interest than they already have
e.g. Eves v Eaves

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23
Q

CICT: Inferred Common Intention

A

An inference is a true intention of the facts
The end result is not tied to how much you pay
- in contrast with a resulting trust.

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24
Q

Have to prove two things to infer a CICT

A
  1. Payments towards the purchase price

2. the payments give rise to the inference of the intention

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25
Q

CICT Inferred: Payments made that can reasonably be relating to the principle of the house

A

Midd B v Cooke

e. g. wider than the scope fo the resulting trust
- indirect payments, solicitor costs, mortgage costs etc.

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26
Q

CICT: Stack v Dowden

A

You can have an inferred intention by looking at the whole course of the parties dealings with each other and the land
- Barned v Phillips

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27
Q

What qualifies under the Stack v Dowden inferrance of a CICT

A

An ‘ambulatory test’: constantly walking/changing

- CPS v Piper

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28
Q

Proving a Stack v Dowden CICT inferrance

A

All depends on the facts of the case

- Marr v Colie

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29
Q

Cannot impute the intention under Stack v Dowden

A

i. e. cannot say ‘if you had thought about it there could have been an intention’
- Barnes v Phillips

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30
Q

Working out the size of the share in a CICT?

A

Implied Intention:
- The house is as much yours as mind = 50%
Decided on the amount of money paid
- Stack v Dowden
If you can’t prove the court will impute that both have a fair share
- not an equal share - fair in the eyes of the judge.

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31
Q

Reliance

A

Need to look for timing

- i.e. redecorating before the common appliance does not matter

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32
Q

The existence of mixed motives does not destroy reliance

A

Chan v Ho

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33
Q

The court is entitled to presume reliance as an explanation for the detriment and the burden of proof is on the defendant to prove otherwise.

A

Gready v Cooke

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34
Q

Detriment

A

Equity should not support a volunteer

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35
Q

Have to have done something relying on the common intention that you would not have otherwise done

A

Has to be related to the property
- e.g. paying more of the mortgage or doing up the house
Course of conduct can also infer detriment

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36
Q

Do not value the size of the detriment

A

even if you pay off the whole mortgage you may only get a 50% share in the property.

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37
Q

Proprietary Estoppel

A

The creation of equity

Remedy: money; license; proprietary share or nothing at all

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38
Q

Legal title of co-ownership can only be held by way of:

A 
Joint Tenancy (s. 1 LPA 1925)
- it cannot be severed to create a tenancy in common
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39
Q

The maximum number of legal owners

A

Four (s. 34 Trustees Act 1925)

- if more than 4 owners, the first four names mentioned on the conveyance will hold the legal title.

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40
Q

Trustees of a legal title must be

A
  • of full age (18) (s. 1 LPA 1925)

- of sound mind (s. 22 LPA 1925)

41
Q

In order to be Joint Tenants, the four unities must be present

A

AS Securities v Vaughn

  • Possession
  • Interest
  • Time
  • Title
42
Q

How is the property held in equity at initial acquisition

- either a JT or a TiC

A
  1. Four Unities
  2. Express declarations
  3. Words of severance
  4. Equitable presumptions
  5. Trusts
43
Q

Express declarations at initial aquisition

A

Express words prevail over any presumptions of JT or TiC ( Pink v Lawrence)

44
Q

Where there are no express declarations, consider words of severance in the grant

A

Words such as
- ‘in equal shares’ (Payne v Webb)
- ‘to be divided between’ (Fisher v Wigg)
indicate a TiC (Malay v Credit)

45
Q

If any equitable presumption exists against a JT

A

e.g the purchase money is provided in unequal shares.
The tenants are presumed to own a TiC in proportion to their payments
- Bull v Bull

46
Q

Equitable presumptions do not apply to domestic situations

A

unless there is evidence to the contrary

- Stack v Dowden

47
Q

Commercial situations are presumed to be

A

A Tenancy in Common, unless rebutted by express words

Lake v Craddock

48
Q

Equity abhors a beneficial vacuum in regards to initial acquisition

A

therefore the equitable interest is a JT

49
Q

Constructive and Resulting trust can be used to vary the property interest

A

But can’t do this if there is writing

- Stack v Dowden

50
Q

When you can use Constructive and Resulting trusts for initial acquisitions.

A

As per Lord Kerr in Marr v Collie

  • to show an intention to vary the interest
  • not a presumption that if you paid more then there is an increase in interest in property
51
Q

A Joint Tenancy

A

The tenants/ co-owners constitute one legal owner

52
Q

In the death of a joint tenant

A

his ownership immediately passes to the other joint tenants by right of survivorship (Gould v Kemp)
- Not by will as these operate after death (Re Caines)

53
Q

Severance will result in a

A

Tenancy in Common

- sever to equality, regardless of who pays for it.

54
Q

A Tenancy in Common

A

Each co-owner has a distinct but undivided share in the land, and shares can be unequal.

  • no right of survivorship applies
  • It is possible to be both a JT and a TiC
55
Q

Severance of a Joint Tenancy

A

A JT can never be severed at law

  • only off the equitable interest and only affects the severing tenant
  • The severing party becomes a TiC
56
Q

Shares of a Joint Tenancy

A

In the absence of an express agreement, the shares arising from a severance of a JT are always equal
Goodman v Gallant

57
Q

Unilateral Severance

A
  • Anyone of the tenants may sever

- taking yourself out of the JT

58
Q

Mutual Severance

A
  • All of the JT’s must agree
59
Q

Exploding the Joint Tenancy

A
  • Ending the JT for everyone
60
Q

Severance by Written Notice

A

Written notice given to all tenants stating an irrevocable intention to sever immediately

s. 36 LPA 1925
- must be a unilateral declaration
- must be an immediate action to sever (not just talking about it).

61
Q

A written notice on behalf of a disabled person is allowed

A

Quigley v Masterton

62
Q

Modes of Severance

A
  • Written Notice
  • An Act Operating on own share
  • My mutual agreement or conduct
  • Unlawful Killing
63
Q

Written notice must be served to all other JT’s by being left at the tenants last known home or business address

A

s. 196 LPA 1925

64
Q

If a written notice is posted

A

It shall be deemed delivered, even if not read by the tenant
Re 88 Berkeley

65
Q

Once served, a notice cannot be revoked

A

Kinch v Bullard

66
Q

An Act Operating on Own Share (AOOS)

A

Enacted Unilaterally
Needs to be done in writing
aka Williams v Hansman severance

67
Q

AOOS: Total alienation

A

The disposition of a tenant’s share to a 3rd party

s. 53 LPA 1925

68
Q

AOOS: Partial alienation

A

e.g. taking out an equitable mortgage

First National Securities v Hegerty

69
Q

AOOS: Involuntary alienations

A

i.e. bankruptcy

Re Gorman

70
Q

Issue of leasing out part of the premises

A

Some Australian cases say that is severs

71
Q

Severance by Mutual Agreement or Conduct (MAC)

A

An agreement amongst all the JT’s to bring the JT to an end
Re Goodchild
i.e. a mutual intention to sever is inferred form actions
- does not need to be legally enforceable
- Everyone has to be party to this as it explodes the JT

72
Q

MAC: inconclusive negotiations may be sufficient to sever

A

Nielson-jones v Fedden
- not conclusive
Burgess v Rawnsley
- was conclusive

73
Q

MAC: you must look at what passes between the parties, paying little attention to what was simply in each of the parties minds

A

paying little attention to what was simply in each of the parties minds
Davis v Smith

74
Q

MAC: Reaching an agreement to deal with a property in a way that involves severance

A

This is sufficient to sever

Hunter v Babbahe

75
Q

MAC: It is possible for the courts to prevent a severance

A

if the court finds an agreement not to sever

Roy v Roy

76
Q

Unlawful Killing

A

Murder or Manslaughter severs the murderer’s share

  • does not explode the JT.
  • Re Krippen
77
Q

Beneficiaries under TOLATA

A

The beneficiaries have the right to occupy the land if that is the purpose of the trust (s. 12 TOLATA)

78
Q

Termination of Co-Ownership

A

When sold, the proceeds of sale are split equally between the beneficiaries.
A JT ends if there is union in the sole surviving tenant, or if one tenant acquires all the beneficial interests.

79
Q

If the land is sold where the sale was not ordered by the court

A

The trustees have the power of sale as if they were absolute owners (s. 6)
- they must consult with and have regard to the rights of the beneficiaries

80
Q

Court orders under TOLATA

A

Anyone interested party can apply for a court order s.14 TOLAT
Must give regard to (s. 15) criteria
- intention, purpose, circumstances, wishes and the welfare of creditors and minors

81
Q

S. 14 TOLATA

A

Allows the court to make any order in relation to co-owned land

82
Q

s. 14 TOLATA: Co-ownership

A

Stack v Dowden

83
Q

s. 14 TOLATA: Selling the property

A

Bank of Ireland v Bell

84
Q

s. 14 TOLATA: Not to be sold

A

Holham v Howes

85
Q

s. 14 TOLATA: Making an order that one pay rent to the other

A

Murphy v Guinness

86
Q

s. 14 TOLATA: Excluding someone from the property

A

Chun v Ho

87
Q

TOLATA converts trust for sale into trust of land

A

The mortgage Corp v Shaire

- any lender with priority does not need s. 14

88
Q

S. 15 TOLATA factors now extend beyond mere purpose to include:

A
  • the s. 15

- any criteria that the court would like to consider

89
Q

s. 15: Even though the property was still being used asa family home, the interest of the secured creditor was powerful enough to force a sale.

A

Bank of Ireland v Bell

90
Q

The court can postpone a sale to allow:

A
  • The other co-owners to buy one out of his share
    (Ali Hussein)
  • To sell the property themselves
    (Putnam v Taylor)
91
Q

Application for Sale

- arising from

A
  • Disputes between co-owners
  • Creditors / Mortgagee’s
  • Bankruptcy
92
Q

Application for sale: Creditors

A

The court’s turn a personal debt into a charge on the land
- a personal debt into a property claim
Bank of England v Bell
- Innocent people will get their money first
Mortgage Corp v Shaire
- In some cases the courts don’t order a sale

93
Q

Disputes between Co-Owners

A

The court has discretion:
Chan v Ho (Suspended the sale)
Holman v Howes (No sale

94
Q

AfS: Bankruptcy

A

Severs a JT, giving a TiC, which then vests in the trustee-in-bankruptcy (s. 306 Insolvency Act)
While the bankrupt trustee remains on the legal title, only the equitable interest vest in the trustee-in-bankruptcy.
In order to sell the land, the TiB must seek a s. 14 court order.

95
Q

Will potential buyers be bound by an equitable interest?

A

s. 28 + 29 LRA 2002

96
Q

The conditions for overreaching equitable interests

S. 2 LPA 1925

A

Mortgage Express v Lambert

  1. It only occurs when there is a conveyance of a legal estate (selling, mortgaging or leasing it)
  2. Only overreach-able rights can be overreached. (e.g. shares in co-ownership or an estoppel)
  3. Can only occur when you have at least 2 trustees and all trustees must agree
97
Q

Equitable rights are not binding on the bank

A

City of London v Flegg

98
Q

A court ordered sale under s. 14 TOLATA will always constitute an overreaching event

A

s. 2 LPA 1925

Attaching the beneficial interest to the purchase monies (Williams and Glynn v Boland)

99
Q

A Lender with priority does not need s. 14 TOLATA

A

Really only needed when a lender does not have priority.

e.g. a lender in trouble with the bank and so resorts to TOLATA as a last resort: Alliance v Slayford.

Land Law (5 decks)

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