CO-OWNERSHIP Flashcards
Co-owernship introduction
co-owned property is where 2 or more people own the same estate in the same piece of land concurrently, and is held by way of a trust
Freehold formalities
s1(1) LPA 1925, by deed - s52(1) LPA 1925, requirements for a deed - s1 LP(MP)(A) 1989, registered - re.g land s27 LRA 2002, unregistered land - s4 LRA 2002
s34 Trustees Act 1925
no more than a max. of 4 legal owners of any property
s34 LPA 1925
legal owners will be the first 4 people named in the conveyance, regardless of how many more people are named in the document
s1(6) LPA 1925
no person under the age of 18 can hold LT, and LT will be held as a JT as this is the only way of holding it
s1, 4 and 6 TLATA
statutory trust will be imposed where eland owners by 2+ people, LT held as JT
Pink v Lawrence
If 4 unities are present, an express declaration is conclusive of an equitable joint tenancy - which will be held in equal shares
Stack v Dowden
alternatively, presumption of equal ET as JT if they’re JT of LT
AG Securities v Vaughan
4 unities - all entitled to possession of the whole of the property, have the same interest in the property with respect to nature and duration, derive their title from the same act of purchase and their interests start at the same time
Bull v Bull
If unequal contribution, presumptions of TIC in unequal shares
Jones v Kernott
Bull doesn’t apply in domestic cases, unless intention of TIC shown by all parties in their whole course of conduct
Sole legal owner + no express declaration
= TIC
Lake v Craddock
If property bought as commercial investment
Payne v Webb
‘in equal shares’
Heathe v Heathe
‘share and share alike’
Fisher v Wigg
to be divided between
Re Kilvert
equally
If 4 unities not present, but there is unity of possession
= TIC (AG Securities v Vaughan)
s36(2) LPA
defines severance by ‘express written notice or other acts or things (Williams v Hensman)
Re Draper’s
need not be signed by the severer (wife’s divorce petition asked for immediate sale of house and immediate division of proceeds of sale)
Re Caines
must be inter-vivos
Harris v Goddard
no severance found - showed intention as to future, petition of divorce was vague
Quigley v Masterson
severance affected - woman’s application in the Court of protection proceedings during man’s lifetime qualified s written notice. Made it clear that she treated his share as 50p and wanted a valuation for house
s196(4) LPA 1925
it is sent by registered post and not returned to Post Office - assume that it has been delivered and no need to move it arrived
s196(3) LPA 1925
if normal post used then would need to prove that notice arrived
Kinch v Bullard
SEVERANCE YES - terminally ill wife posted written notice in letter box. Husband never seen it
Re 88 Berkeley Road
SEVERANCE - YES - the other woman knew nothing about it until after first woman’s death. Recorded delivery to property and signed for it herself
Ahmed v Kendrick
S - YES - husband sold jointly owned house by forging wife’s signature
Penn v Bristol
NO S- bc. of fraud
First National Securities v Hegarty
mortgaged operating on his own share
Re Gorman
bankruptcy - involuntary alienation
Gore & Snell v Carpenter
NO S - No final agreement, only preliminary, and not a course of conduct. Overall separation not finalised or signed - could be revised
Nielson-Jones v Fedden
NO S - Memo was not a notice, only authorised husband to sell on behalf of both parties, only distributed a portion of total1k deposit not all of it - MUST BE IRREVOCABLE
Greenfield v Greenfield
NO S - despite property being physically divided
Burgess v Rawnsley
YES S - oral agreement, negotiations had gone as far as discussing the price
Hunter v Babbage
YES S - agreed house would be split unequally, draft order of consent for sale
Davies v Smith
YES S - mere agreement to put jointly owned property on market NOT ENOUGH - but they agreed that sale proceeds would be divided between them, both had legal advice, had agreed that proceeds divided in balanced way. FOCUS on words/conduct between both parties NOT what was on their minds
Carr v Isard
NO S - mum and dad each exceeded a will - but difference in wills
RE Woolnough
YES S - same will, clear instructions
s7(3) TLATA
trustees have power to physical partition land with consent of Bs
Wright v Gibbons
JT can acquire TIC’s interest by will and have dual status
s6 TLATA
trustees have power to sell the land
s11 TLATA
T have duty to consult all beneficial owners of full and age and give effect to the wishes of the majority (by value) so far as is consistent with the general interest of the trust
s10 TLATA
if the trust deed requires the consent of 2+ people to the sale - the consent of 2 is enough
s12 TLATA
Bs have the right to occupy the property
s13 TLATA
T can apply to exclude Bs from occupying - occupation rent
s15(1)(A) intersts of people who created the trust ,Barclays Bank v Taylor
must consider intentions of the parties who created the trust if formal express trust
Re Buchanan-Wollaston
sea view home
Re Ever’s
husband left family home but wife and kids still hthere - purpose of family home existed until kids of school leaving age 16. Husband did not need money and could live elsewhere
Jones v Challenger
couple divorced - continuing purpose of family home - NO even if one still wanted
s15(1)(c) TLATA
the welfare of minors in occupation
s15(1)(D) TLATA,
the interests of secured creditors
Mortgage Corp v Shaire
pre-TLATA cases treated with cation as old cases favoured creditors and Neuerberg said they shouldn’t - continuing purpose should be looked at
Bank of Ireland v Bell
interests of creditors paramount over the family home
First National v Achampong
bank not to be kept out even though wife, kids (1 disabled) and grandkids lived there
Fred Perry v Genis
commercial interests to take precedence over family interests
Putnam v Taylor
voice of creditors prevail regardless of homelessness
Dennis v McDonald
cohabiting couple bought house as TICs. Had 5 kids, man was violent so woman left with 2 younger kids, man continued to live there with other 3 kids. CA refused order for sale - ordered man to pay occupation rent to woman which was half a fair rent for the property
Ali v Hussein
co-owner wanted land sold to get back investment. Court postponed sale for some months to let other co-owners buy out the co-owner who wanted to leave
Re Gorman - bankruptcy
husband went bankrupt, his TIB was entitled to left of the value
s306(1) IA 1986
bankrupt’s share of joint ET will vest automatically in the TIB to deal with as TIC
s305(2) IA 86
TIB must realise and distribute the bankrupt’s assets to their creditors within 3y of the bankruptcy (Enterprise Act 02’). This entails applying for a sale of the property under s14 TLATA to realise its value in cash
s283(3) IA 86
Bankrupt’s LT is unaffected
s15(4) TLATA
court will have regard to the factors in s33(5)(A) IA: interest of the bankrupt’s creditors, the conduct, needs and resources of the spouse or civil partner of the bankrupt, the needs of any children, all the circumstances except for the needs of the bankrupt - Everitt v Budhram
Everett v Budhram
exceptional circs. does not include the needs of the bankrupt
Re Citro
NOT EXCEP. - for wife and children to be homeless or children’s education to be affected - 2 bros went bankrupt, - NORMAL Circumstances -‘melancholy consequences of debt and improvidence’
Re Holiday
EXCEPTIONAL - husband deliberately made himself bankrupt & creditors didn’t need their money that badly as were large commercial and their money was proceed in the value of the house. Wife’s voice allowed to prevail sale not ordered
Re Mott
Exceptional- serious mental or physical illness of wife - wife was elderly and unwell and had lived in house for 40year, son had co-owned and went bankrupt, sale postponed until she died
Re Raval
Exceptional - serious mental illness of wife - wife was a paranoid, schizophrenic, short postpomenet
Claughton v Charalmbous
Exceptional- wife had renal failure, and severe arthritis (terminal). Sale was postponed
Re Haghighat
Exceptional - spouse’s child seriously disabled with cerebral palsy, required continuous care, sale postponed for 3y
Nicholls v Lan
Exceptional - spouse had chronic long-term schizophrenia, order postponed for 18m
Re Bremmer
Exceptional - bankrupt was terminally ill with cancer, had 6m to live. Courts hung postponement on spouse and said spouse had to be there to care for the bankrupt - sale postponed for 3m after bankrupt died
Barca v Mears
disruption of child’s educational - NOT EXCEPTIONAL. despite special needs.
Donohoe v Ingram
Not exceptional - 4 young’s children’s education would have been disrupted, judge said may be room for more generous interpret ion but not here
