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.