Co-ownership and Trusts Flashcards
How must the legal estate of land be held in co-ownership?
Joint tenants
How can the equitable interest in a property be held in co-ownership?
Joint tenants
Tenants in common
What is the key feature of joint tenancy?
Undifferentiated ownership - entitled jointly to the property
What is the key feature of tenants in common?
Each owner has a distinct share whish can be unequal
What is the 4 stage test for whether the interest is held as a joint tenancy or TIC?
- Are the 4 unities present?
- Does the deed contain an express declaration?
- If no express declaration, does the deed transferring the land contain words of severance indicating distinct shares?
- Does equity presume a tenancy in common?
What are the 4 unities?
- Unity of possession – each co-owner has the right to possession of all the land
- Unity of interest – identical rights over the land (no unequal shares)
- Unity of title – have acquired their interest from the same document
- Unity of time – received interests at the same time
If the 4 unities are not present, what does this indicate?
May indicate a tenancy in common
If they are present, equitable interest could be held as either joint tenants or TIC
What is equity’s presumption regarding joint tenants / TIC?
Presumption of joint tenancy
When is equity’s presumption of joint tenancy rebutted?
- Property acquired for business use
- Unequal contributions to the purchase price
- Post-acquisition money management
When can a joint tenancy in equity be severed?
In the lifetime of the co-owner
NOT in the will
How can a joint tenancy in equity be severed?
Written notice
Informal severance
Bankruptcy
Homicide
What are the requirements for severance of an equitable joint tenancy by written notice?
Does NOT need to be signed
Must express desire to end joint tenancy immediately
Must be received by all the other joint tenants / or deemed to be received (by post - sufficiently delivered if not returned / left at last know place of abode)
How can informal severance occur of a equitable joint tenancy?
Acts operating on the joint tenant’s share - e.g. disposal by sale, gift, lease
Mutual agreement - act together expressly or by implication, but must be supported by some valuable consideration
Court of dealing / mutual conduct
Where there are 2 joint tenants, what is the effect of severance?
Both become TIC in equal shares
Where there are 3 joint tenants, what is the effect of severance?
Only severing co-owner becomes tenant in common - others continue to hold a joint tenancy over remainder with share proportionate to number of joint tenants
