Co-Ownership * (bc my brain combusted on the other one)

Question 1

What are the traits of a JOINT TENANCY?

Answer 1

• Can be in law and/or equity
• 1 whole share belonging to max 4 trustees
• Right of survivorship of remaining trustees
• Needs 4 unities
• If in law, cannot be severed: S36(2) LPA 1925

Question 2

What are the traits of a TENANCY IN COMMON?

Answer 2

• In equity
• Shares, while undivided and possibly unequal, can be split amongst trustees
• No right of survivorship, shares pass on as per normal
• Just need unity of exclusive possession

Question 3

How can a TIC arise?

Answer 3

1. From the start
   • Conveyance/Will expressly naming co-owners as TIC
   • Only exclusive possession unity present
   • Co-owned property used in a commercial context
   • Unequal contributions to purchase of property
   • Joint mortgage (multiple lenders)
2. Severance from JT in equity

Question 4

Consideration(s) for transfer of property under a sole trustee for unregistered title?

Answer 4

1. Doctrine of notice
   • Purchaser must be made aware of Ben’s interest in property to bind interest to purchaser, otherwise Ben’s interest overreached: Hunt v Luck

• If no inspection made by lender/purchaser, then will be served with constructive notice (bad): Lloyds Bank v Carrick

Question 5

Consideration(s) for transfer of property under a sole trustee for registered title?

Answer 5

1. ‘Actual occupation’ overriding interest
   • Williams and Glyn’s Bank v Boland
   • Sch 3 para 2 LRA 2002
   • Is Ben’s occupation obvious on a reasonably careful inspection/was Ben asked and Ben unreasonably failed to reveal his interest?
2. Restriction to protect minor interest (no actual occupation)
   • Elias v Mitchell
   • S40 LRA 2002: Purchase price must be paid to 2 trustees

Question 6

Transfer of property under 2 or more trustees?

S2(2) LPA 1925: Need at least 2 trustees or a trust corporation

Answer 6

1. ‘Actual occupation’ can be overreached
   • City of London Building Society v Flegg
   • S27 LPA 1925
2. Rights of Ben transferred to purchase price
   • Purchase price = Trust fund, where Bens have equitable interest
3. Purchaser cannot be a trustee of land
   - HSBC v Dyche
   • Read overreaching requirements + purchaser definition tgt
   • Purchaser may not be acting ‘in good faith’ and in breach of trust, so no overreaching

• Bagum v Hafiz
  • Court can, however, order trustee to sell to particular beneficiary

Question 7

Powers of trustees?

Answer 7

1. All powers of absolute owner: S6(1) TOLATA 1996
   •Cannot transfer interests between Bens, only court can order that: Bagum v Hafiz and Hai
2. Can exclude/restrict Bens’ entitlement to occupation: S13 TOLATA 1996
   • Can excl any (NOT ALL) Bens
   • Can order excl Ben to pay any expenses
   • Can order other Bens to pay excl Ben compensation (not beyond Ben’s share value
3. Under a duty to consult Bens: S11(1) TOLATA 1996
   • But purchaser doesn’t have to check if this has been done

Question 8

Rights of beneficiaries?

Answer 8

1. Right of occupation: S12 TOLATA 1996
• S12(2): No right to occupy if property is 'unavailable or unsuitable' for occupation
• Chan v Leung: Look at 
(a) SIZE/CHARACTER OF PROP; 
(b) TRAITS OF OCCUPIER; 
(c) INTENTIONS OF OTHER PARTIES

Question 9

In dispute between TRUSTEES AND BENS, what can court order?

Answer 9

1. Sale refusal (possibly w order regulating right to occupy)
2. Sale order (possibly w suspension for a period)
   • If land was bought for a purpose that can still be fulfilled, sale order unlikely: Re Buchanan- Wollaston; Re Evers’ Trust
3. Partition of prop
   • Rodway v Landy

Question 10

How to sever a JT in equity?

E.g. if trustees in dispute

Answer 10

• Severance: S36(2) LPA 1925

Williams v Hensman
1. Act on your share (Explicit enforceable int)

2. Mutual Agreement [Burgess v Rawnsley: Make clear other party want common shares, not joint; Pennycuick: Doesn’t have to be an enforceable agreement]
3. Course of dealing sufficient to intimate interest of all were mutually treated as constituting a tenancy in common

Question 11

“notice has to express desire to bring about wanted result immediately”

• Severing JT in EQ

Answer 11

Harris v Goddard
• Divorce petition insufficient to sever
• No desire expressed to bring about result immediately

Question 12

Effect of severance?

Answer 12

Goodman v Gallant

• Equal shares even if ≠ contributions

Question 13

How much mortgage to be paid if one co-owner forged signature to take a mortgage?
(Dispute between co-owner and 3rd party)

Answer 13

1. Mortgage Corporation v Shaire
   • Amount to be repaid to be recalculated based on his equitable interest in the property
2. Bank of Ireland v Bell
   • If inequity greater on creditor (e.g. unpaid debt more than house value vs 17yo’s occupation), will order sale
3. Etridge No 2
   • If charge obtained through ‘undue influence’, then transaction doesn’t stand
   • Overt acts of improper coercion OR undue influence in a r/s
4. Order of sale dependent on S15 TOLATA 1996
   • Intention of trust creator
   • Welfare of minors in occupation
   • Interests of secured creditors

Question 14

What if 3rd party claims against one co-owner’s beneficial interests?

Answer 14

First National Bank v Achampong
• JT can be severed
• 3rd party can apply for sale order