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Land Law > Co-ownership > Flashcards

Co-ownership Flashcards

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1
Q

How can co-ownership be created?

A

Deliberately or can arise from the operation of legal principles where the law imposes co-ownership is certain circumstances (most are created deliberately)

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2
Q

What is severance?

A

It is how an equitable joint tenancy can be made into an equitable tenant in common. What severance does is turn a joint tenant into a tenant in common - so severance is a process which changes to the co-ownership in equity (from a joint tenant to a tenancy in common)

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3
Q

What is co-ownership?

A

Where two or more persons have proprietary interests in the same land/property at the same time.

  • Where two or more parties have legal ownership, or
  • Where two or more parties have equitable ownership of the same piece of land or house or property at the same time
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4
Q

Does co-ownership exist in relation to the legal title or equitable title?

A

Exists in relation to both of them (but there is a distinction)

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5
Q

How can co-ownership be created deliberately?

A

Where title to land is expressly conveyed to two or more persons

For example: a couple buy a property and the title to that property is deliberately conveyed by deed into the name of both of them – that’s a deliberate co-ownership

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6
Q

Is legal co-ownership or equitable co-ownership always virtually deliberately created?

A

Legal co-ownership as there are formalities involved like use of a deed, use of a transfer form
Equitable co-ownership can be created deliberately or imposed by the operation of the law

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7
Q

How can co-ownership of the equitable properly arise by the operation of the law (where equity can impose it on co-owners)

A

They may not choose to be owners, but the law makes them co-owners because co-ownership will be imposed under an implied trust (either a resulting trust - commercial or a constructive trust - domestic)

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8
Q

If there has been a contribution made to the purchase price of a property in a commercial context would it be a resulting trust or constructive trust?

A

Resulting trust

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9
Q

If there has been a contribution made to the purchase price of a property in a domestic context (husband and wife, boyfriend and girlfriend, civil partners, mother and child, father and child) would it be a resulting trust or constructive trust?

A

Constructive trust

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10
Q

What two things should you look at to identify whether the trust is resulting or constructive?

A

1) The relationship between the contributors. Is it a domestic or commercial relationship
2) Also look at why the property was bought – what is it going to be used for and if that is domestic or commercial

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11
Q

Why when buying co-owned land (whether that is joint tenancy or tenancy in common) will the land always be trust property?

A

Because statute imposes a trust, so even if the parties don’t put a trust in place, statute will impose one

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12
Q

What is a key distinct feature of a joint tenancy?

A

There are no distinct separate shares or portions of entitlement. Joint tenants own the property collectively, they do not have separate shares of ownership.
Joint tenants are regarded as a single unit or a single composite owner where together they own all of it, separately they own none of it

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13
Q

What case outlines the notion of collective ownership?

A

Hammersmith & Fulham LBC v Monk [1992] 1 AC 478

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14
Q

Which co-ownership can have legal title and equitable title separately or at the same time?

A

Joint tenancy

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15
Q

How many joint tenants can you have for a legal joint tenancy?

A

A maximum of 4 joint tenants of the legal title

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16
Q

What are the four unities which must be present for a joint tenancy?

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

(PITT)

A.G. Securities v Vaughan and Others [1988] 2 WLR 689

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17
Q

What is unity of possession (1 of 4 unities for joint tenancy and tenancy of common)?

A
  • That all of the co-owners are equally entitled to possess and occupy the co-owned property
  • So they cannot abort it and partition it up into separate properties – this would not be a joint tenancy
  • This is only for the right of possession where one of the joint tenants don’t actually live at the property and have chosen to live somewhere else – where they are entitled to the right of possession, not exercising it
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18
Q

What is unity of interest (1 of 4 unities for joint tenancy)?

A

All co-owners’ interests must be the same in nature,extent and duration
If dealing with the legal title, they’ve all got to be freehold owners or all got to be leasehold owners under LPA 1925, s,1(1)

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19
Q

What is unity of title (1 of 4 unities for joint tenancy)?

A

All co-owners must have acquired their title by the same means NOT what type of title they have

  • all by transfer or grant; or
  • all by way of adverse possession
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20
Q

What is unity of time (1 of 4 unities for joint tenancy)?

A

The interests of all co-owners should vest at the same time
If it is transferred to them by way of deed, the deed will become effective at the same time to give them all a conveyed ownership at the same time

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21
Q

What is the leading case for the 4 unities for joint tenancy?
PITT

A

A.G. Securities v Vaughan and Others [1988] 2 WLR 689

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22
Q

What are the 3 defining characteristics of a joint tenancy?

A
  • No separate shares
  • The presence of the four unities
  • Right of survivorship
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23
Q

What is the right of survivorship?

A

That there are no separate shares, presence of the four unities and right of survivorship

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24
Q

What case supports the right of survivorship whereby the right to the whole of the property accrues automatically to the surviving joint tenants or joint tenant on the death of any one joint tenant

A

Harris and Another v Goddard and Others [1983] 1 WLR 1203

Where it happens at the moment of death

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25
Q

Can a will override the right of survivorship?

A

No, survivorship overrides a will. When they die the interest will survive to the other tenants regardless of whether they left their interest in a will

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26
Q

What case states that when one joint tenant dies, the property vests in the other so the estate survives to the remaining tenants?

A

Davis v Smith [2011] EWCA Civ 1603

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27
Q

What case states that each tenant in common has a separate and distinct interest of his own?

A

Burton v Camden LBC [2000] 2 AC 399

28
Q

Can a tenant in common sell, mortgage or leave their share in their will without the consent of the other tenants?

A

Yes as there is no right of survivorship for tenancy in common

29
Q

What statute states that it is legally impossible to create a tenancy in common of a legal title?

A

s.36(2) LPA 1925

30
Q

What statute confirms that legal title to co-owned land can only be held by way of joint tenancy?

A

s.1(6) and s.36(2) LPA 1925

31
Q

What are words of severance?

A

Words or statements from the parties which indicate that the co-owners regard themselves as having distinct shares of entitlement: tenancy in common

32
Q

What case states that ‘equally’ for words of severance?

A

Lewen v Dodd (1595) Cro Eliz 443

33
Q

What case states that ‘to be divided equally’ for words of severance?

A

Fisher v Wigg (1700) 1 Salk 391

34
Q

What case states that ‘in equal shares for words of severance?

A

Payne v Webb (1874) LR 19 Eq 26

35
Q

What does the ‘general presumption’ decide?

A

Where no express declaration is made by the co-owners and no words of severance are present, whether the equitable title is to be held on joint tenancy or tenancy in common is decided with reference to the ‘general presumption’

36
Q

What is the general presumption?

A

As the legal title to co-owned property must necessarily be owned as a joint tenancy, tenancy in common of the legal title being prohibited by a number of provisions contained in the LPA 1925. As equity follows the law, its presumed that the equitable title will also be held by way of joint tenancy
- this principle is backed in Stack v Dowden [2007] 2 WLR 831

37
Q

What the three exceptions to the general presumption?

A
  1. Unequal contributions to purchase price
  2. Joint mortgagees
  3. Commercial partnerships (business property)
38
Q

What is the basis for the exception of unequal contributions to purchase price for the general presumption?

A

Where co-owners have contributed unequal amounts to the purchase price of the property
Equity deems is unfair to impose a joint tenancy. Seen as a tenancy in common is more appropriate as it allows the parties disproportionate contributions to be reflected in their shares of equitable title

39
Q

Where does the exception of unequal contributions to purchase price for the general presumption not work?

A

In the case of joint legal ownership of the family home by a married or cohabiting couple, the mere fact of unequal contribution to purchase price will not normally be sufficient to rebut the presumption of a joint tenancy in equity.
Jones v Kernott [2011] UKSC 53

40
Q

What case states that ‘unequal contributions to purchase price’ cannot be used as an exception for married couples for the general presumtption

A

Jones v Kernott [2011] UKSC 53

41
Q

What are the methods of severing a beneficial joint tenancy and under what statute do these come from?

A
  • notice in writing s.36(2) LPA 1925

- serve the notice LPA 1925, s 196

42
Q

Does the notice in writing to sever a joint tenancy have to be in a particular form (deed or signed)

A

No as s.36(2) LPA 1925 does prescribe for that to happen

43
Q

What case states that severance happens immediately, not in the future

A

Harris and Another v Goddard and Others [1983] 1 WLR 1203

44
Q

Does notice in writing have to be served on all other joint tenants?

A

Yes due to s.196 LPA 1925

45
Q

What does s.196(3) LPA 1925 state?

A

Any notice shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the … person to be served …
AKA
Applies where the notice for severing tenancy is from the tenant themselves (delivered themselves or by an agent (solicitor or post man/woman) on behalf of the joint tenant)

46
Q

What does s.196(4) LPA 1925 state?

A

Any notice shall also be sufficiently served, if it is sent by post in a registered letter addressed to the … person to be served and if that letter is not returned by the postal operator undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.
AKA
Addressed by postal operator and hasn’t been returned to sender – service will be deemed to be made at the time which the registered letter in the ordinary course be delivered

47
Q

Does s.196(3) or (4) LPA 1925 state that notice shall be served if it is left at the last known place of abode or business?

A

s.196(3) LPA 1925

48
Q

Does s.196(3) or (4) LPA 1925 state that notice shall be served if it is sent by post in a registered letter and isn’t returned by the postal operator undelivered

A

s.196(4) LPA 1925

49
Q

What case states that notice for severance is served even if the addressee does not actually receive it?

A

Kinch and Another v Bullard and Another [1999] 1 WLR 423

50
Q

What case states that as long as the notice in writing was sent to the addresses address that notice is served regardless of whether the addressee saw the letter?

A

In Re 88, Berkeley Road, N.W. 9 [1971] Ch 648

51
Q

Which statute states that where … any tenant desires to sever the joint tenancy in equity, he shall … do such other acts or things as would, in the case of personal estate, have been effectual to sever the tenancy in equity.

A

LPA 1925, s 36(2)

52
Q

What case sets out the three ways a joint tenancy may be severed

A

Williams v Hensman (1861) 1 J & H 546

  1. an act of any one of the persons interested operating upon his own share
  2. mutual agreement
  3. any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common
53
Q

What 5 acts would sever someones share?

A
  1. sale (destroys unity of title)
  2. mortgage (can only mortgage your half)
  3. gift
  4. lease
  5. bankruptcy (bankrupt joint tenant is transferred to the trustee) - involuntary severance
54
Q

Why does the sale of a joint tenants interest sever a joint tenancy?

A

Destroys the unity of title

55
Q

Why does a joint tenant charging their interest in co-owned land in a mortgage sever a joint tenancy and which case supports this?

A

Can only mortgage their half of their join tenancy
In First National Securities Ltd v Hegerty [1984] 1 All ER 139 the husband forged his wife’s signature on the mortgage, the charge only worked on the husbands half and severed the joint tenancy

56
Q

What case supports that bankruptcy is involuntary severance

A 
Re Pavlou (A Bankrupt) [1993] 1 WLR 1046 and
Re Dennis (A Bankrupt) [1996] Ch 80
57
Q

What was held in Burgess v Rawnsley [1975] Ch 429 in regards to severance?

A

Beneficial joint tenancy severed by oral agreement by one joint tenant to sell her share to the other joint tenant (even though the agreement was not specifically enforceable).
Whether or not there is an oral agreement between the joint tenants is a question of fact

58
Q

What was held in Hunter v Babbage (1995) 69 P & CR 548 in regards to severance?

A

An enforceable agreement between a divorcing couple was sufficient to sever the joint tenancy even though the husband died before the agreement could be formalised

59
Q

What was held in Gore and Snell v Carpenter (1990) 60 P & CR 456 in regards to severance?

A

There had not been severance by mutual agreement

So in this case that the discussions and agreements fell short of mutual agreement

60
Q

What will the courts look at if there is no evidence of a mutual agreement between the tenants?

A

Look at the conduct of the parties to assess whether there is evidence of a common intention that wold affect severance

61
Q

What case supports McDowell v Hirschfield Lipson & Rumney [1992] 2 FLR 126 in saying that unilateral conduct would be sufficient to sever a joint tenancy

A

Re Draper’s Conveyance [1967] 1 Ch 490 - Plowman LJ

It was sufficient to sever the joint tenancy of the matrimonial home as issuing a divorce to the husband was accurate

62
Q

What case states that upon a severance, each takes an equal aliquot share according to the number of joint tenants?

A

Goodman v Gallant [1986] 2 WLR 236

63
Q

Do tenants after severance have to take equal shares?

A

No, if the parties agree amongst themselves that it should be something other than equal shares then the courts will give effect to that

64
Q

What case states that merely making a will purported to dispose an undivided share in a jointly owned property does not itself make the effect of severance?

A

Carr v Isard (2006) EHC 2095

65
Q

What statute covers severance?

A

S.36(2) LPA 1925

Land Law (4 decks)

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