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Exam cards - Land Law > Co-Ownership > Flashcards

Co-Ownership Flashcards

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1
Q

Joint tenancy (JT)

A
  • Legal title must be held as JT
  • Right of survivorship applies (Re Caines)
  • Cannot sever the legal JT
  • All shares are equal as there is no identifiable own share
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2
Q

Tenancy In Common (TIC)

A
  • TIC can exist for ET and LT
  • No right of survivorship
  • Can be held unequally
  • Identifiable own share
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3
Q

S1 TLATA 1996

A

Converted all trusts for sale into trusts of land

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4
Q

Preliminary issues;

A
  • A trust of land separates the legal and equitable title, so must be dealt with separately
  • Rough structure;
    • Initial acquisition
    • Subsequent events
    • Endings
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5
Q

AG Securities v Vaughan

A 
4 unities (PITT)
Possession
Interest
Title
Time
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6
Q

Re Caines

A
  • Right of survivorship under a JT

- Survivorship takes preecdence over a will

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7
Q

S1(6) LPA 1925

A
  • Legal title must be held as a joint tenancy

- Legal title cannot be held by an infant (under 18)

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8
Q

S34(2) TA 1925

A
  • Legal title can only be held by 4 legal owners

- Only first 4 named on the title deed shall be legal title holders

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9
Q

S22 LPA 1925

A

Must be of full mental capacity

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10
Q

If the equitable title can be held as either a JT or TIC how is it decided?

A

U - unities
S - words of severance
P - presumptions
E - express declaration

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11
Q

Pink v lawrence

A

Express intention prevails over presumption

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12
Q

What are words of sevarance?

A

 In equal shares – Payne v Webb
 Share and share alike – Heathe v Heathe
 To be divided between – Fisher v Wigg
 Equally – Re Klivert deceased

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13
Q

Bull v Bull

A
  • Where contributions unequal there is a strong presumption of a TIC
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14
Q

Stack v Dowden

A

In domestic context even where there are different contributions it is still presumed to be held as a JT

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15
Q

Lake v Craddock

A

Commercial context TIC presumed

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16
Q

Legal title cannot be severed

A
  • S36(2) LPA 1925 - as can only be held as a JT
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17
Q

Severance must occur whilst still alive

A

Re Caines

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18
Q

Severance can only go from JT to TIC not vice versa

A

AG v Vaughan

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19
Q

Goodman v Gallant

A

Where JT is severed the resulting TIC is always an equal share, regardless of unequal contributions

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20
Q

Singla v Brown

A

TIC from severance is equal, unless specifically stated not to be

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21
Q

Re Dennis

A

Where severance has not occurred the right of survivorship applies under a JT

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22
Q

Wright v Gibbons

A

One party can hold equitable title as both a TIC and JT

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23
Q

Methods of sevarance

A
  • Written notice
  • Act operating on own share
  • Mutual agreement
  • Mutual conduct
  • Homicide
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24
Q

Requirements for written notice

A
  • No formalities other than in writing S36(2) LPA 1925
  • Re Drapers - no signature
  • Given to all tenants
  • Content
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25
Q

S196 (3) LPA 1925

A
  • Valid on arrival at last known abode
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26
Q

Kinch v Bullard

A
  • Severance occurs at point of arrival of letter
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27
Q

S196(4) LPA 1925

A
  • Postal rule operates in relation to severance
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28
Q

Harris v Goddard

A

Content;
Unequivocal
Irrevocable
Immediate intentionq

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29
Q

Severance can be express or implied

A
  • Re Draper’s Conveyance - Implied severance as intention to sever was immediate fromthe treating as separate shares
  • Harris v Goddard - No immediate intention so implied severance not effectiveq
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30
Q

S36(2) - Severance by other acts or things

A

William v Hensman

  • Act operating on own share
  • Mutual agreement
  • Mutual conduct
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31
Q

Total alienation of interest

A

Generally through sale. As this is a disposition of an existing equitable interest must be made in signed writing S53(1)(c)

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32
Q

Ahmed v Kendrick

A

Effective severance through forging of signature

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33
Q

Penn v Bristol and West

A

No severance where sale was attempted through forging of wife’s signature. Failed as collusion between purchaser and husband

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34
Q

Partial alienation

A

Where JT in property is mortgaged it becomes severed

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35
Q

First National Securities v Hegerty

A

Husband mortgaged house. Severed interest from JT to TIC. A mortgage is a charge on the TIC.

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36
Q

Involuntary association

A

Where the bankrupt party’s assets become the property of te bank this severs the interest, becoming a TIC

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37
Q

Re Gorman

A

Husband went bankrupt. Bank took Husbands share of house, severing interest to become TIC. As only 1 share left, other share becomes a TIC too.

38
Q

Contract to alienate

A

Where there is a contract to sever equity sees what will be done as done, so share already severed

39
Q

Brown v Raindle

A

Contract to alienate severs interest when entered into

40
Q

Commencement of litigation

A
  • This can sever an interest though is a much criticised method
  • Severance by litigation must be unilateral and irrevocable
41
Q

Re Drapers Conveyance

A

Commencement of litigation was held to sever

42
Q

Nielson-Jones v Fedden

A
  • Memo and agreement to sell not enough to sever by mutual agreement as sale is not treason the property in separate shares
  • Criticised sevrance by litigation as proceedings can be revoked, so are not irrevocable
43
Q

Gore and Snell v Carpenter

A
  • Ongoing negotiations no sufficient to sever an interest.

- No severance by mutual conduct as no long term assumptions

44
Q

Burgess v Rawnsley

A

Parties agreed at a moment in time a price for the shares. Therefore this was mutual agreement. Subsequent revocation was irrelevant.

45
Q

Re Woolnough Deceased

A

Severance by mutual conduct through mutual wills allocating separate shares. Treated shares as separate in wills, therefore there is mutual conduct of separate shares

46
Q

Carr v Isard

A
  • No severance by mutual conduct as will did not require the property to be held as TIC. Therefore not treating as separate shares
  • Severance by conduct requires the conduct to be as treating the shares as a TIC
47
Q

Burges v Rawnsley

A

Obiter that negotiations show intention to and conduct to have separate shares, so this is sufficient to sever!!!! Good discursive point
- Where agreement is not found, negotiations regarding agreement could be used as evidence for conduct

48
Q

Davis v Smith (2011)

A

Severance by mutual conduct as had treated shares separately in receiving legal advise as to how their 50/50 split of shares should be allocated

49
Q

Greenfield v Greenfield

A

Physical division does not amount to severance as it still shows an intention for rules of survivorship to apply

50
Q

Homicide

A

Has effect of severance but policy states that the person shall not benefit from wrong doing

51
Q

S2 & S27 LPA 1925

A

Overreaching in purchasing of a co-owned property

52
Q

S2(1)(iv)LPA 1925

A

Court ordered sale will automatically overreach the interest

53
Q

Disputed sale of co-owned property - TLATA provisions

A

a. S6 TLATA – Trustees have all the power of an absolute owner
i. However must obtain best possible sale price S1 TA 2000
b. S8 & 10 – Must obtain consent of trustees (legal title)
i. S10(1) states that the purchaser is not at fault if only 2 consents are achieved, however trustee is required to obtain consent from all beneficiaries
ii. S10(3) – Must obtain consent of parent of minor if not 18
c. S11 – Must consult (but not necessarily obey) the beneficiaries (equitable title) who are;
i. Of full age
ii. Majority of share view will be obeyed
iii. Can only sell property if it is in general interest of trust
1. And then give effect to these wishes if possible
d. S11 can be excluded S11(2)(a)
i. And will not apply to trusts created pre TLATA (1/1/1997)

54
Q

Beneficiary rights of occupancy

A

e. S12 + 13 – Beneficiaries right to occupy property
i. If trust set up for beneficiaries occupation, or land subsequently bought for that purpose
ii. S13(3) TLATA – Beneficiary may be excluded from property (but not all beneficiaries) if living with other beneficiaries is incompatible
iii. S13(4) TLATA – allows trustee to impose terms of occupancy of the beneficiary
iv. S13(6) TLATA – Trustee can obligate compensation from occupying benficiry to non-occupying
v. S13(7) TLATA – any beneficiaries in actual occupation are protected. Sale cannot occur without their consent or the courts

55
Q

Court application for sale

A

S14 - Court application for sale
S18 - Anyone with an interest in the trust can make an application if there is a disputed sale
- Court can rule on; Exercise of powers, ned to obtain consent, declaration of beneficiary’s interest

56
Q

What provision sets out the factors the court takes into consideration in obligating a sale?

A

S15;

  • Intention - Of persons who created trust (just trustees)
  • Purpose - For which the trust property is held (beneficiaries and trustees)
  • Welfare of minors in occupation of trust property
  • Interests of secured creditor
  • Wishes of beneficiary. If disputed then weight is given to the majority of ownership wishes
57
Q

Jones v Challenger

A

court will not obligate sale where land is stable matrimonial home. In this case the court did obligate the sale as the property was bought to be a matrimonial home but that purpose was no longer in operation as husband dead.

58
Q

Re Evers trust

A

court will not obligate where purpose is still continuing. Was bought as a family home and there were still children living there

59
Q

Re Buchana-Wallastons

A

Property bought for purpose of sea view. This was a continuing purpose so sale could not be obligated

60
Q

Mortgage Corporation v Shaire

A
  • Pre-TLATA case law should be treated with caution as Parliament obviously wanted to change how the law worked, so to apply old case law too closely is erroneous
  • Demonstrates pre-TLATA lack of consideration for family etc, and emphasis of sale of property
61
Q

Bank of Ireland v Bell

A

Creditors interests are first among equals

62
Q

FNB v Achampong

A

Sale ordered to appease creditors even though wife, children and grandchildren all living at the property. Creditors afforded high status in consideration

63
Q

Putnman v Taylor

A

Secured creditor given precedence over health of husband. However court did allow 5 month delay for sale to occur before enforced

64
Q

Ali v Hussein

A

Obligate a buyout by co-owners who do not want sale, of the party who does want to sell

65
Q

Dennis v McDonald

A

Obligate parties who do not wish to move to pay rent

66
Q

S306 IA 1986

A

When beneficiary becomes bankrupt the share vests in the bankruptcy trustee

67
Q

S305(2) IA 1986

A

Obligation of trustee to realise asset

68
Q

What section sets out the relevant factors in the obligation of a sale in a bankruptcy situation?

A

S335A IA 1986

69
Q

S335A IA 1986

A

Factors which are relevant in the obligation of a sale where beneficiary is bankrupt;
o 2(a) – creditors interests (most important)
o 2(b)(i) – Conduct of other party in contributing to bankruptcy
 Partners –consider conduct
o 2(b)(ii) – Needs and financial resources of other parties
 Partners – consider needs and resources
o 2(b)(iii) – the needs of any children (minors)
o 2(c) – All other circumstances of the case other than needs of bankrupt party (all other except bankrupt)
o S3 – Application made pre/post 1 year
 Before 1 year then likely that the courts will allow more time to recover money, called a moratorium
 After 1 year the creditors wishes become paramount unless there are exceptional circumstances;

70
Q

Re Mott

A

Elderly lady who was v.ill no obligated sale till after her death. Son was bankrupt party not her.

71
Q

Re Raval

A

Short postponement where paranoid schizophrenic would be adversely affected by the obligated sale

72
Q

Re Bremner

A

Sale postponed till 3 months after bankrupt party’s death, so elderly spouse could care for him in home. Only had 6 months to live

73
Q

Nicholls v Lan

A

Where spouse of bankrupt party had long-term schizophrenia an order for sale was postponed for 18 months

74
Q

Re Haghighat

A

– Sale delayed for three years as child had cerebral palsy and required constant care

75
Q

Barca v Mears

A

Says article 8 of the Convention is engaged when an order for sale is made, but that this was not a breach. The child living in the home was not ‘exceptional’ enough (education not exceptional)

76
Q

Donohoe v Ingram

A

(Courts will give time to let the bankrupt person to find an alternative home, but the debtors take priority, even with children in the home and education disrupted

77
Q

Ford v Alexander

A

Depression not exceptional circumstances. Sale obligated

78
Q

Re Citro

A
  • Schooling of children interrupted. Not exceptional

- Harman LJ described as ‘the melancholy consequence of debt’

79
Q

Barca v mears

A

Human right infringed of art 8 right to private and home life by S335(a) IA 1986 as kicked out of home

80
Q

Introduction - history

A
  • Land originally held outright by the man
  • Then held as trust for sale s34 LPA 1925 as land regarded as investment
  • Trusts for sale subject to right to occupy - bull v bull
  • TLATA 1996 S1 coverts all trusts for sale to trusts of land
  • s6(1) TLATA - trustees have rights of absolute owner
81
Q

Structure of intro

A
  • Trusts of land
  • LT and ET
  • JT and TIC
  • Survivorship
  • Severance
  • Statement of intent and structure
82
Q

Re drapers

A

No need for written notice to be signed

83
Q

Kinch v Bullard

A

Severance occurs at point of arrival of letter.

Letter arrived and then husband died. Deemed severed.

84
Q

Ford v Alexander

A

No conflict between 335(a) and art 8 if properly applied and analysed

85
Q

Consent in bankrputcy

A
  • S14(2)(a) TLATA 1996 – Under a sale for bankruptcy there is no need to obtain the consent of other trustees, or to consult with others for the exercise of their sale powers
86
Q

Co-ownership in relation to marriage

A
  • S14 TLATA does not really apply to husbands and wives as they are covered under the Matrimonial Causes Act 1973
  • MCA gives court wide discretion to obligate sales etc to divide up property
87
Q

Re K

A

Homicide severs

88
Q

Mortgage v Shaire(2)

A
  • Neuberger s15 ‘tips balance in favour of families and against banks and other charges’
  • Court ordered a loan to be granted to mrs Shaire so she could pay off the mortgage over time (kids in residence)
89
Q

Re Chiswick

A
  • Bankruptcy severs joint tenancy
90
Q

Re somers

A

For mutual agreement no writing is required

91
Q

Hunter v Babbage

A
  • Divorcing couple. Wife suggested in affidavit that couple should be sold and she would use her proceeds to buy a small house
  • Held to sever, as though no agreement finalised there was evidence of treating the property in separate shares
  • Criticised in Nielson-Jones as not irrevocable and intention to get 50% share could be withdrawn
92
Q

Wilson v bell

A
  • Long term assumptions about how property held can sever through conduct

Exam cards - Land Law (4 decks)

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