Co Ownership - SQE Short Notes Flashcards
What is a Joint Tennancy vs a Tennacy in Common?
- Joint Tennacy - All own the shares together (ie own 100% together)
- Tennacy in Common - All own their own undivided shares, equal or unequal (50% and 50% or 75% and 25%)
Can the legal title be held as a Tennacny in Common?
No,
Legal title is always Joint Tenancy, while equitable title can be:
-Joint Tenancy: Ownership shared equally.
-Tenancy in Common: Ownership in specified shares (equal/unequal).
What rights do legal owners v equitable owners have?
Legal Tile - Has the Right to sell the property
Equitable Title - Has the right to benefit from the property by living in it, or receiving rent / sale proceeds.
What are the 4 required unites for a Joint Tenancy?
- Unity of Possession (Ie they all own 100% together, there are no dividing of the interest and all have the same rights)
- Unity of Interest (Each Co-owner has identical rights in the land or property) (not one owns the freehold and the other the lease hold)
- Unity of Title (They all acquired the title in the same way - by the same transaction and same document)
- Unity of Time (All co-owners must have acquired their interest at the same time) (If all siblings was gifted the property upon reaching a certain age, unless they was exact same age this is not stratified)
All 4 of these must be present for Joint Tenancy, otherwise it’s a tenancy in common.
What is the Right of Survivorship?
When does it apply?
- If one Co-Owner of a Joint Tenancy dies, their ownership of the property automatically passes over to the remaining joint tenants.
- This takes precedent over any express wishes left in their will.
- (If both tenants died at the same time, the eldest one will be deemed to have died first, the younger one would have the entire ownership, and it would pass following their will or intestacy)
What happens after a Joint Tennacy is Servered?
After being severed, the remaining co-owners will continue to hold the remaining amount as joint tenants (all equally), and the severed part will be held in a tenancy of commons.
○ Ie - Ben, Sam, Chloe, and Ceanne hold the legal and equitable interest as joint tenants (All own 100% together) ○ Ben severs his interest. Sam, Chloe, and Ceanne now hold 75% as Joint Tenants, and Ben owns 25% as tenancy in common
What are the 5 methods of severing a Joint Tennancy?
- Written Notice
-Must be to all the Joint Owners
-Must be In Writting
-Agreement is not needed
-Effected once sent - Operating on a Partys own share (Acting as if its separate already)
-Mortgaging their equitable share
-Becoming Bankrupt - By Mutual Agreement
-Express or Implied
-Also changes legal ownership - Forefeiture following unlawful killing
-Also changes legal ownership
-If one co-owner kills another, they will lose their equitable and legal ownership, and the remaining co-owners will hold it together
Can tennacy in common co owners leave there interest in a will / sell it?
Yes, they can transfer their equitable interest (not their legal)
Can Tenancy in Common Co-Owners occupy the property and why?
They have the right of unity of possession, so each co-owner can live in the property
What happens to the legal and equitable ownership of a property when one Co Owner of a Tenancy in Common Dies?
- Legal Ownership
-The legal ownership is always held as Joint Tenants, so the serving co-owners take the legal interest - Equitable Interest
The equitable interest will be transferred as per the will or intestacy rules.
The legal owners will hold the legal ownership on trust for the equitable owners
- The legal owner has the power to sell, the equitable owners have the right to occupy, right from rent profits, and right to sale proceeds
What happens if the there is dispute between co - owners?
Anyone with an interest can apply to the court to resolve a dispute.
This includes mortgagor
What are the 4 things the court will consider when resolving a dispute between co-owners?
Do any have more weighting?
s.15(a) - The intentions of the persons who created the trust (the original legal and equitable trust)
s.15(b) - The purpose for which the property subject to the trust is held.
s.15(c) - The welfare of any minor who occupies or might reasonably be expected to occupy
s.15(d) - The interests of any secured creditors of any beneficiary’s
(All is given equal weighting)
How can a Co-Tenancy be turned into a joint tenancy?
Co-Owners must apply to HM Land Registry
What is the diffrence between a constructive trust and a resulting trust?
-Constructive Trust - A result of paying for significant improvements or paying significant mortgage payments
-Resulting Trust - Contributing to the purchase price
Which Beneficiaries must trustees consult regarding the land they hold on trust?
Trustees:
- Over 18
- Have a interest in possession (have an immediate interest)
○ For example, Two trustees hold a large country estate on trust for a brother and his sister for life with remainder to their cousin in fee simple. The trust was set up five years ago, when the brother was aged 16 years, his sister was aged 12 years and the cousin was aged 21 years.
○ In 5 years, the brother is 18 and the sister is 17.
○ So the Brother must be consulted as of age, the sister is not.
The Cousin is not consulted because he doesn’t have an immediate interest (he gets the interest once both the brother and sister die)
