CO OWNERSHIP Flashcards
What are the features of a Joint Tenancy?
- The four unities ALL are present
2. There is a right of survivorship
What are the two types of co-ownereship?
S33 PLA:
- Joint Tenancy
- Tenancy in Common
What are the Four unities?
- Unity of Possession
- Unity of Interest
- Unity of Title
- Unity of Time
What is Unity of Possession?
Each co-owner has the right to possess the WHOLE of the estate, but not to only one part of the estate: Wright v Gibbons
What is the Unity of Interest?
Each co-owner must have the same kind of interest of the same nature. One can’t have a life estate while the other has a fee simple.
What is Unity of Title?
The Title of all co-owners must be created by the same instrument.
What is Unity of time?
The interest of each co-owner must vest at the same time.
In a Joint tenancy, do owners share interest equally?
YES.
All co owners will hold an equal share of the interest in the land
What is the Right of survivorship?
On the death of a co-owner, that share of land vests in the survivor/s of the joint tenant.
Where there are 2 Joint Tenants, and they both die at the same time such that it is impossible to tell who died first, what is the situation?
s65 PLA indicates it is presumed the younger person is deemed to have survived the oldest person.
Therefore the property will be distributed in accordance with the younger person’s will.
This is a rebuttable presumption.
What are the features of a Tenancy in Common (TIC)?
- Only one unity (Unity of possession) is required. The others are merely additional
- No right of survivorship.
Where there are co-owners, what is the presumption?
s35(1) PLA:
The presumption is that there is a tenancy in common.
What are exceptions to the presumption under s35(1) PLA?
- Where a Joint tenancy is expressly stated under s35(2) PLA
- Executors, administrators, trustees and mortgagees hold property under s35(2)(a) PLA
- Property held for partnership purposes under s35(2)(b) PLA
When will a TIC be created Post PLA?
- Where land is given in unequal shares; Or
- Where one of the unities is not present; Or
- Words of Severance are used.
For a TIC “to share and share alike” Re Barbour Deceased
What is the presumption in Equity?
A Tenancy in Common is presumed in situations where:
- Land was acquired for a joint business or undertaking (Lake v Craddock)
- Where purchase money for land was advanced in unequal shares: Bull v Bull and Calverley v Green
- Mortgagees
What is the relevance of Lake v Craddock?
Land owned in partnership would be held as Tenancy in Common.
It would be unfair to allow the principles of survivorship to operate in an undertaking designed to produce a profit.
The owner who died first would lose their investment and the other partners would succeed to the share at law, but in equity, the deceased’s share will be held for legal personal representative.
What is the relevance of Calverley v Green?
This case confirms that if two people contribute to purchase moneys in unequal shares, there’s a presumption that property is held on TIC.
The Trustees of John Daniel Cummins Relevance?
Husband and wife bought matrimonial home.
Husband transferred his half to his wife’s name.
In 2000, husband became bankrupt.
The trustee commenced proceeding in respect of the transfer of the husband’s share of the property arguing the husband had a half share because they were joint tenants.
Wife relied on Calverley v Green and argued she had paid 76%, so she had only to pay 24%, not 50%.
Court held: The husband and wife purchased matrimonial home and each made contributions to purchase price and the title is taken by one of them.
Essentially, it could be inferred that each of the spouses should have a one half interest in property irrespective of the amounts the contributed.
held: wife to transfer 50% of proceeds of sale of house.
This position is changed by Family Law Act
What is the presumption of mortgages?
s35(2) mortgagees are presumed to be joint tenants
Equity, however, presumes TIC
What are the rights between Co-owners?
- Rights of Re-occupation
- Rights regarding profits and rents from the property
- RIghts regarding compensation for a contribution for improvements to the common property.
What is the right to occupation?
Each co-owner is entitled to use and occupy the WHOLE property subject to a similar right on the part of other co-owners.
Can a co-owner bring a stranger onto the land?
Yes, provided that the stranger does not interfere with the rights of other co-owners: Thrift v Thrift.
In this case, husband and wife owned joint property. They separated and husband moved out.
The wife moves her mother and lover in.
Held: former wife did NOT infringe on husband’s rights by having both her mum and partner live there.
Rights to Occupation
Can a co-owner lease his/her share to a third party?
Catanzarti v Whitehouse:
Yes. The tenant will have exclusive possession, but will NOT have the right to exclude other co-owners from the use and enjoyment of property. if there is exclusion, the tenant is trespassing.
Rights to occupation
Where one co-owner moves out, can the co-owner who remains in occupation be liable for occupation rent?
Luke v Luke: The co owner is exercising his/her common law right to entire possession of property and is not liable to be charged with an occupation rent where he/she has not excluded the co-tenant in common.
When is occupation rent payable?
- Upon express agreement
- Where a co-owner has to submit to an occupation rent if claiming a contribution for improvements: Teasdale v Sanderson
- Where there has been ouster excluding another co-owner from possession
What amounts to ouster?
- Where it is unreasonable to expect the excluded co-owner to exercise his/her right to occupy the premises
What are the cases for Ouster?
- Re Thurgood
- Callow v Rupchev
- Biviano v Natoli
- Beresforrd v Booth
Ouster
What are the facts of Re Thurdgood?
The D was asked to leave 4-5 times and the P threatened to call the police if the D returned.
This wash led to be ouster that indicated P intended to exclude D
Ouster
What are the facts of Callow v Rupchev?
There was a relationship breakdown and it was not reasonable to expect parties to continue to occupy the premises in the case of relationship breakdowns.
Ouster
What are the facts of Biviano v Natoli?
A couple lived together for a number of years.
The proeprty was in the name of one party, but both parties had signed a trust deed to indicate the property was to be held by appellant on trust for her and the respondent on equal shares.
The other party had to leave the premises.
Held: Courts said this was not ouster.r The other party could not bring an action for ejectment of co-owner.
However the woman did deny there was an existence a trust deed which recognised another co-owner’s interest. This was essentially denying that the other co-owner has an interest in the property, which is ouster.
When is there a right to profits?
- When the property is let or used by third parties under s43 PLA
- Where property is occupied by one or more owners under.
- Accounts can be ordered under Sale or Partition under s38 PLA
What section of the PLA indicates a right to profits where the property is let or used by a third party?
s45 which indicates a co owner can bring an action against another for receiving more than a ‘just or proportionate’ share of rents and profits.
Each co-owner is entitled to a proportionate share of rents and profits.
What is the exception to profits where the property is occupied by one or more co-owners?
s43 PLA - where the profits result from a CO-OWNER WORKING THE LAND HIM/HERSELF, then the profits do not have to be shared.
Henderson v Eason.
What is the relevance of Henderson v Eason?
One co-owner is in occupation. he works on the farm and does not exclude the other partners. The courts held the moneys were simply a return on the capital and labour of the owner, so it was not profits.
What are the set offs that the co-owners receiving income are entitled to?
- The outgoings expended to earn that income: Marriot v Franklin
2 Allowance for time and labour in earning the income: Squire v Rogers
What is the general rule for compensation for improvements and repairs to co-owned property?
There is no remedy for contribution/compensation but he/she is entitled to an allowance on partition.
What is the exception to the general rule of compensatiton?
- Where it is agreed;
- Where there was a joint obligation to make the improvement: Leigh v Dickeson
- In equity, when the co-ownership is brought to an end, a co-owner is entitled to a contribution or compensation for improvements to co-owned property, from other co-owners.(Brickwood v Young)
How to calculate the improvements to be recovered?
McMahon v Public Curator.
The Co-owner is entitled to the lesser of:
1. The actual COST of the improvement; OR
2. The amount by which the improvements have increased the value of the land.
When can compensation not be recovered?
McMahon v Public Curator
Compensation cannot be recovered for repairs in the NATURE OF ORDINARY MAINTENANCE.
In this case, it was painting of the house, pest treatment or repairs which the co-owner was obliged to do under contractual obligations
What are the exceptions to ordinary maintenance recovery?
- Where there is agreement between parties
- Where there is a common obligation to undertake repairs
- Where repairs are more than mere repairs/maintenance and are repairs of lasting nature (Forgeard v Shanahan)
What are the facts of McMahon v Public Curator?
Two partners held farm land as Tenants in common.
A house was built by one for his exclusive occupation using recycled building materials, therefore it enhanced the value of the land greatly because of the improvements.
The courts refused a claim as the house had been erected by the occupying co-owner at his own expense and the area of land occupied by the house was very small relative to the size of the farm.
Court held:
1. A co-owner seeking compensation may be ordered to pay an occupation rent on the principle that he who seeks equity must do equity.
On general principles, the right to compensation is last if the other co-owner conveys his/her interest to a bona fide purchase for value without notice.
Is there any liability to pay outgoings?
If one co-owner pays more than his/her share of debt, it is possible to recover extra from the ohters.
This exists only where there is a COMMON OBLIGATION to pay debts.
There are three types of outgoings:
1. Rates
2. Insurance
3. Mortgage repayments.
To what outgoings does the compensation apply to?
- Rates
- Generally common obligation in mortgage document, but otherwise no obligation. No mortgage, then no reason to take insurance, so wont be able to recover
- Yes, there is a common obligation to repay the mortgage.
What are the facts of Forgeard v Shanahan?
A and B purchased as joint tenants.
They had a de facto relationship. House was eventually sold. How to divide proceeds?
Both contribute for rates and mortgage repayments.
However, courts held Insurance or pest control can’t be claimed because it was simple maintenance and did not improve property.
Shanahan had to pay occupation fee whether it was ‘just and equitable’.
