Co-Ownership - Severance

Question 1

Legal title can only be held by Joint Tenancy

Answer 1

s. 1(6) LPA 1925

Question 2

Legal title cannot be severed to create a tenancy in common

Answer 2

s. 36(2) LPA 1925

Question 3

Maximum number of legal owners is 4; if more than that, only first 4 will be named as legal joint-tenants

Answer 3

s. 34(2)(a) TA 1925.

Question 4

No limit on equitable title

Answer 4

Equitable title can be held under joint tenancy or tenancy in common

Question 5

An express declaration of type of co-ownership is conclusive within the limits of the law

Answer 5

Goodman v Gallant, Pankhania v Chandegra

Question 6

Express Trust can be overridden by proprietary estoppel

Answer 6

Clarke v Meadus

Question 7

For a Joint Tenancy, 4 unities must be present

Answer 7

1. Possession - co-owners entitled to possess whole property
2. Interest - co-owners are all equally entitled under same type of interest
3. Title - interests of the co-owners are derived from the same conveyance or transfer
4. Time- the interests vest at the same time

Question 8

There can be no joint tenancy if conveyance uses words of severance:

1. In equal shares
2. To be divided between
3. In individual shares

Answer 8

1. Martin v Martin

2. Fisher v Wigg

Question 9

Joint tenants benefit from survivorship:

Joint-tenants inherit the interest of a join-tenant who dies; their interest cannot be disposed through a will

Answer 9

Gould v Kemp

Question 10

Tenancy in common requirement

Answer 10

Only unity of possession

Question 11

Equity presumes a tenancy in common where there is the intention, but also when purchase price is provided in unequal shares (1), but this presumption does not necessarily apply in domestic situations (2)

Answer 11

1. Bull v Bull

2. Stack v Dowden, Jones v Kernott

Question 12

Acts of severance

Answer 12

Only possible with tenancy in common, if a joint tenant severs they become tenancy in common

Question 13

Act of severance through written notice (s. 36(2) LPA 1925):

1. Consent of other joint-tenants not required
2. Notice must be served to other joint tenants
3. If posted, rules in ss. 196(3) and 196(4) LPA 1925 apply.
4. If posted and delivered, notice may still be effective even if not read.

Answer 13

1. Harris v Goddard
2. s. 196 LPA 1925
3. Re 88 Berkley Road

Question 14

Valid notice of serverance cannot be revoked

Answer 14

Per Neuberger J in Kinch v Bullard

Question 15

An expression in an application form that other joint-tenant was treating the joint tenancy as being severed was sufficient to constitute notice to sever

Answer 15

Quigley v Masterson

Question 16

Act of joint-tenant “operating on his own share” (1)

(2) Voluntary transfer
(3) Involuntary transfer - (bankruptcy can sever joint-tenancy)
(4) Commencement of litigation - (obtaining divorce)

Answer 16

1. William v Hensman
2. Disposition of land under s. 53(1)(c) LPA 1925
3. Re Dennis

Question 17

An oral declaration to sever is not enough

Answer 17

Burgess v Rawnsely

Question 18

Mutual Agreement (1)
Negotiation to sell (2): parties negotiate price where one buys out the other
Agreement to sell (3): agreement, with evidence that parties agreed to treat shares as separate was enough

Answer 18

1. comes from William v Hensman
2. Burgess v Rawnsley
3. Davis v Smith

Question 19

There will be a severance when the parties have acted over a long period of time on the assumption that each owns a share as tenancy in common - i.e. course of dealing

Answer 19

Burgess v Rawnsley - Lord Denning found that course of dealing had led to severance

Question 20

Course of dealing sometimes not enough:

1. No severance with separate capital accounts
2. No severance when couple separated but no divorce

Answer 20

1. Barton v Morris

2. Gore & Snell v Carpenter

Question 21

If a joint tenant kills another joint tenant, they do not benefit from survivorship and they are severed:

1. Murder
2. manslaughter.
3. Suicide Pact

Answer 21

1. Re Crippen
2. Re Hall
   3, Dunbar v Plant

Question 22

After severance of joint-tenancy, the tenants-in-common hold in equal share, this is so, even if they contributed unequally to the purchase price

Answer 22

Goodman v Gallant

Question 23

It may be possible to declare in writing that different share should flow from the severance

Answer 23

Suggested in Finch v Baker

Question 24

Rights and duties of trustees set out under ss. 6-9 TOLATA 1996, but also note:

(1) beneficiary with an interest in possession has an express right to occupy
(2) trustee has right to reasonably exclude or restrict beneficiaries, but this may not be done unreasonably, per s. 13(7), they cannot exclude a beneficiary already in occupation, unless beneficiary consents or there is a court order.

Answer 24

1. s. 12 TOLATA 1996

2. s. 13 TOLATA 1996

Question 25

(1) Any person who is a trustee or has interest in land subject to a trust of land can apply to court, court can make an order declaring the nature of an interest or relating to the exercise of any of the trustee’s functions as it thinks fit.
(2) factors court consider when deciding s. 14 applications

Answer 25

1. s. 14 TOLATA 1996

2. s. 15 TOLATA 1996

Question 26

In disputes between co-owners under s.14 TOLATA, courts may postpone sale and make other order, such as partitioning property

Answer 26

Chun v Ho, but examples of sales being ordered, i.e. Begum v Issa.

Question 27

Disputes between co-owner and secured creditor:
Only apply if sale foes not have priority (mortgage bound by overriding interest); s. 14 gives court discretion to award sale in favour of non-priority creditor, but (1) case law suggests that sale is more often ordered

Answer 27

Mortgage Corp v Shaire

Question 28

Disputes between co-owner and trustee in bankruptcy:
Where one of the co-owners goes bankrupt, Courts consider factors under s. 335A Insolvency Act 1986.
(1) after 1 year, the interests of the creditors are deemed to outweigh those of resisting co-owners, unless circumstances are “exceptional”

Answer 28

Harrington v Bennet

Question 29

Disputes between co-owner and trustee in bankruptcy, “exceptional circumstances”:

1. Child had educational difficulties and family could not afford property in another area - postponed for 6 months
2. Child had special needs but postponement would require creditors to wait 3 years - sale ordered
3. Bankrupt’s elderly mother lived in the house - postponed till after death
4. Bankrupt had terminal cancer - postponed until 3 months after death
5. Bankrupt’s spouse had schizophrenia - sale postponed

Answer 29

1. Re Citro
2. Barca v Mears
3. Re Mott
4. Re Bremner
5. Re Raval

Question 30

Purchaser: Sale by two trustees overreaches any equitable interests

Answer 30

City of London BS v Flegg

Question 31

Sale by single trustee where there is beneficial co-ownership:
Lack of 2 legal owners means there is no overreaching

Answer 31

Williams & Glyn’s Bank v Boland

Question 32

Purchase of property by single legal owner where there is beneficial co-ownership & mortgage is used to finance property purchase:
No overreach in favour of lender, since only one legal owner, lender therefore seems to lose priority.
(1) But no “shiver of time” between completion of purchase & registration of charge
(2) A beneficial co-owner may be deem to consent to rights being subject to those of the mortgagee where he knows that purchase of property has been made with aid of acquisition mortgage

Answer 32

1. Abbey National v Cann

2. Paddington v Mendelsohn

Question 33

Sale by single surviving joint-tenant

Answer 33

Conveyance same as with one Registered Proprietor