Co-Ownership & Trusts of Land Flashcards
Williams v Hensman (1861) Topic
Method of Severance by common law
Williams v Hensman (1861) Principle
• 4 ways to sever a joint tenancy at common law
o 1) Operating on one’s own share
o 2) Mutual agreement
o 3) course of dealings
o 4) Homicide (not referred to in the case)
Ahmed v Kendrick (1987) Topic
Severance at Common Law/ Unilateral Act
Ahmed v Kendrick (1987) Facts
• Husband and Wife were JTs
• Husband forged wife’s signature to sell the property
• Were they severed?
• Held:
o Sufficient to sever the JT
o Forging the signature is an act of alienation
o They are TC
o Husband only sells his share of the property
Ahmed v Kendrick (1987) Principle
- Forging the signature is an act of alienation
- An alienating your share of the property is sufficient to sever the JT
Re Buchanan-Wollaston’s Conveyance (1939) Topic
Dispute to sale/ Intention
s. 15 TOLATA
Re Buchanan-Wollaston’s Conveyance (1939) Facts
• Neighbours got together and purchased land in front of their houses
• Did not want someone to build on it
• Some neighbours wanted to sell
• Held:
o Purpose supports not to sell
o Intention of purchase is to preserve the land for all of them to benefit
Re Buchanan-Wollaston’s Conveyance (1939) Principle
- Intention of the creation of a trust can be expressly created
Re Citro (1991) Topic
Bankruptcy
Re Citro (1991) Facts
•C went bankrupt
•The couple separated and the wife lived with the 3 children in the house
•Debt owed exceeded the value of their homes
•Trustees in bankruptcy applied for declarations to sell the houses
•Held:
o Application was allowed
o Financial hardship is not an exceptional circumstance
o Hardship, eviction, relocation do not qualify as exceptional circumstances
o Exceptional means beyond the ‘melancholy consequences’
Re Citro (1991) Principle
o Normal disruption (home less/schooling) not good enough
• “Melancholy of Bankruptcy is not enough”
Edwards v Lloyds TSB Bank plc (2005) Topic
Dispute of Sale
s. 15 TOLATA
Welfare of Minors
Edwards v Lloyds TSB Bank plc (2005) Principle
- Postponement may be possible if harm to children
* Especially if secured creditor not prejudiced
Claughton v Charalamabous (1999) Topic
Bankruptcy
Exceptional Circumstances
Physical Illness
Claughton v Charalamabous (1999) Facts
- Severe medical needs
- House was built to accommodate these severe medical needs
- Bankruptcy sale was postponed indefinitely
- It is considered an exceptional circumstance
Claughton v Charalamabous (1999) Principle
o Illness may be exceptional
• Important for reason why house should remain unsold
Re Raval (1998) Topic
Bankruptcy
Exceptional Circumstances
Mental Illness
Re Raval (1998) Facts
- Mental Illness
- Schizophrenia
- Considered an exceptional circumstance
- 1 year postponement
Re Raval (1998) Principle
o Illness may be exceptional
• Important for reason why house should remain unsold
Re Draper’s Conveyance (1969) Topic
Form of statutory notice of Severance
s. 36(2) LPA 1925
Re Draper’s Conveyance (1969) Facts
• An affidavit in support of a divorce petition
• It asked for the property to be sold
• Asked the proceeds of the sale to be divided equally
• Held:
o Sufficient to effect the severance of the beneficial joint tenancy
Re Draper’s Conveyance (1969) Principle
o Document may not be designed to sever, but the court may find it is implied
Nielson-Jones v Fedden (1975) Topic
Severance at Common Law
Course of Dealing/Conduct
Narrow Approach
Nielson-Jones v Fedden (1975) Facts
• Family breakdown
• Negotiations about the home
• Idea, that the house would be sold, proceeds would be used to house the husband
• No intention to make husband sole owner of new house
• Question is whether these course of dealings intend sever JT
• Held:
• No
• The dealings were neutral about their JT
o This dealt with the use of land, not the ownership of proceeds of sale
o Memo was ambiguous about ownership
o Lord Denning thought this was wrongly decided
Nielson-Jones v Fedden (1975) Principle
Narrow Approach
Depends on the facts, not intention
Burgess v Rawnsley (1975) Topic
Severance at common law
Mutual Agreement
Leading Case
Burgess v Rawnsley (1975) Facts
- Mr H and Mrs R bought house together containing separate flats for them to occupy
- Misunderstandings – Mr H orally agreed to buy Mrs R’s ‘share’ for £750
- Mr H died – his executor argued severance; Mrs R survivorship
- Unenforceable contract to sell (s 40 LPA 1925) – so not act on own share
- But CA found H and R’s unenforceable agreement of sale indicated common intention to sever: Pennycuick VC (BEST ONE); Lord Denning MR & Browne LJ
- Mutual agreement therefore implied from agreement to sever
Burgess v Rawnsley (1975) Principle
o Mutual agreement therefore implied from agreement to sever
- Mutual Agreement can be an informal/oral agreement
• No need to be written agreement that satisfies s.2 LP(MP)A 1989 because it is just an agreement to sever
Harris v Goddard (1983) Topic
Form of statutory notice of Severance
s. 36(2) LPA 1925
Harris v Goddard (1983) Facts
o Request that court exercise it’s discretion under divorce legislation was held to be too vague
o Did not sever
- Need specific intention to sever
Harris v Goddard (1983) Principle
o Document may not be designed to sever, but the court may find it is implied
- Court will not always find that it severs
- Contradicts RE Drapers Covenyances
First National Securities Ltd v Hegerty (1985) Topic
Severance at common law
Unilateral Act on ones own share
Mortgage
First National Securities Ltd v Hegerty (1985) Facts
• Forged signature
• Couple were equitable joint tenants of their home
• Husband raise money on a legal charge by forging his wife’s signature on the document
• Argued that this act severed the joint tenancy by alienation of his interest
• Held:
o Joint tenancy was severed
o The very act of applying for a mortgage loan was sufficient to sever
First National Securities Ltd v Hegerty (1985) Principle
- o The very act of applying for a mortgage loan was sufficient to sever
Mortgage Corporation v Shaire (2001) Topic
Dispute of Sale
S. 15 TOLATA
Secured Creditors
Mortgage Corporation v Shaire (2001) Facts
• No order of sale but because Mrs S (debtor’s co-owner) agreed to take over the secured creditor’s loan repayments; and debtor only had 25% share (so creditor not prejudiced)
Mortgage Corporation v Shaire (2001) Principle
- under TOLATA 1996 no such precedence given to secured creditor’s interests by s. 15
- No more important than the welfare of children
- Possible for co-owner to take over loan payments rather than sell the property
Bank of Ireland v Bell (2001) Topic
Dispute of Sale
S. 15 TOLATA
Secured Creditors
Welfare of Minor
Bank of Ireland v Bell (2001) Principle
- Reaffirmed that creditor’s interests ‘powerful consideration’ (Gibson LJ)
- Co-owner cannot take over loan payments if cannot afford to take over he debtor’s loan
- Weight/significance of minor depends on how close minor is to majority
First National Bank plc v Achampong (2004) Topic
Dispute of Sale s. 15 TOLATA Purpose Welfare of Minors Secured Creditors
First National Bank plc v Achampong (2004) Principle
- Purpose can change over time
- Ex: Having Kids
- Matrimonial home becomes family home
- Minors can be considered grandchildren
- Insufficient to show presence – need to show how children’s’ welfare will be adversely affected by sale (Blackburne J)
- Courts will still be very influenced when a secured creditor is involved
• Make sure the secured creditor is protected
Barca v Mears (2005) Topic
- Bankruptcy
- Exceptional Circumstances
Barca v Mears (2005) Principle
•Normal disruption associated with bankruptcy is not enough to be considered an exceptional circumstance
- • “Melancholy of Bankruptcy is not enough”
Lake v Gibson Topic
- Creation of the equitable estate
- No express declaration
- Presumption that Equity prefers TC
- Presumption 2(a)
- Unequal contribution to the purchase price
Lake v Gibson Principle
- Unequal contribution to the purchase price will be presumed to creates a TC in equity
Stack v Dowden (2007) Topic
- Creation of the equitable estate
- No express declaration
- Presumption that Equity prefers TC
- Presumption 1 - Equity follows the law
Stack v Dowden (2007) Principle
- Presumption 1 - Equity follows the law
•Law says the only form of co-ownership of the legal estate is JT
Kinch v Bullard Topic
Statutory method of severance (s.36(2) LPA 1925)
s. 196 Effective ways to serve notice
•Registered Post S. 196(4)
•Leaving at last place of abode or business or person served S. 196(3)
Kinch v Bullard Facts
•Left at the last UK abode/business of person served (s 196(3))
•Wife posted letter (s 36 notice) of severance
•H had heart attack
– wife changed her mind
•W destroyed the letter after delivery but before H received it
•Severance – H’s share passed in his will
•(Obiter) – revocation may have been effective if communicated before notice ‘given’
Kinch v Bullard Principle
- Notice by Registered Post is deemed served unless it is returned undelivered
- S. 196(4)
- Can serve notice by leaving it at last place of abode or business or person served S. 196(3)
Goodman v Gallant Principle
Severance of a JT
- Becomes TC in EQUAL shares
- regardless of initial contribution
Express Declaration of Trust will override Stack v Dowden
Punkkhania principle
Aunt and nephew had an express declaration of trust as equal shares in TC
- Rejected aunt’s claim of intention
- According to Stack, she was entitled to all beneficial ownership
Bathurst v Scarborough Principle
Equitable estate
- Business partners
- Equity prefers TC
- Unless JT is expressed
Lloyds Bank v Rosset Principle
constructive trust
- 2 ways they arise:
1) Informal agreement between parties, and the beneficiary acts to his detriment
2) Beneficiary makes a direct financial contribution, and common intention will be inferred
Goodwin v Eldridge Facts
s. 36(2) notice
s. 196 registered post
- G mailed notice to their shared property
- G signed for it
- died shortly after
- E argued that there was no severance
- Held:
severed
Notice deemed served unless returned undelivered
Quigley v Masterson Principle
s. 36(2) notice
s. 196 registered post
- Recipient need not agree or personally know about the notice
Gould v Kemp Principle
Severance
Cannot sever a JT by Will
survivorship operates on death
Gore & Snell v Carpenter Principle
Severance at common law
- divorce
- discussed severance
- husband died
- no severance
- did not amount to an agreement
Narrow approach
Neilson-Jones v Fedden
Greenfield v Greenfield
Greenfield v Greenfield Principle
Physically divided house into 2 flats
- C had onus to prove severance
No severance
Narrow approach
Neilson- Jones v Fedden
Gore & Snell v Carpenter
Davis v Smith Principle
Course fo dealing
- Divorce
- dealings suggested that they were going to sell the house
- discussed a s.36 notice
- wife died
- severance had occurred
there was evidence to indicate that it was going to happen
Re K Principle
Unlawful killing
severance at common law
Severs JT on killing
Bull v Bull Principle
Unequal contributions
Equity prefers TC
Rebutting presumption
Unless expressly state they want a JT
Bedson v Bedson Principle
Purpose of land can be mixed
Jones v challenger Principle
s. 15
Purpose
Matrimonial homes ends upon divorce
Identification of the Legal and Equitable Estate Cases?
Legal
Equitable
- Stack v Dowden
- Goodman v Gallant
- Punkkhania
- Lake v Gibson
- Bull v Bull
- Bathurst v Scarborough
Trust
- Lake v Gibson
- Bull v Bull
- Lloyds Bank v Rosset
- Stack v Dowden
- Jones v Kernott
Severance Cases?
Effect of Severance
- Goodman Gallant
s. 36(2)
- Kinch v Bullard
- Goodwin v Eldridge
- Re Drapers
- Harris v Goddard
- Quigley v Masterson
Common Law William v Hensman Act on ones own share - Ahmed - Hegerty - Walsh v Lonsdale - Gould v Kemp
Mutual Agreement
- Burgess Rawnsley
Course of Dealing/Conduct
- Neilson Jones v Fedden (Narrow)
- Smith v Davis (Expansive)
- Greenfield v Greenfield (Narrow)
- Gore & Snell v Carpenter (Narrow)
Unlawful killing
- Re K
- Dunbar v Plant
TOLATA Cases/Sections?
Pre- TOLATA Occupation
- Bull v Bull
- Boland
- Flegg
S. 15
Intention
- Re Buchanan-Wollaston Conveyance
Purpose
- Bedson v Bedson
- Achampong
- Jones v Challenger
Welfare v Minors
- Rawlings v Rawlings
- Achampong
- Bank of Ireland v Bell
Secured Creditors
- Bank of Ireland v Bell
- Edwards v Lloyds Bank
Bankruptcy Cases?
- Charalamabous
- Re Raval
- Re Citro
- Barca Mears
