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5. Land Law > EXAM NOTES: Co-Ownership > Flashcards

EXAM NOTES: Co-Ownership Flashcards

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1
Q

how is co-owned land held?

A
  • held on trust due to s34(2) LPA 1925
  • trusts of land governed by s1 TLATA 1996
  • trusts divide legal and equitable title to land
  • express trust must be evidenced in signed writing s53(1)(b) LPA 1925
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2
Q

how can ownership of land be shared?

A
  • either as joint tenants or tenants in common

- a JT at equity can be severed to allow the owner to dispose of his share of the land

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3
Q

How is legal title to co-owned land held?

A
  • must be held as joint tenants s1(6) LPA 1925
  • must be of full age s1(6) LPA
  • must be of sound mind s22 LPA
  • maximum four legal owners s34(2) Trustee Act 1925
  • must have 4 unities
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4
Q

What are the 4 unities?

A

PITT Unity of:

  • possession -equal right to the same land
  • interest -same interest (freehold or leasehold)
  • title -all derive interest from same document
  • time -all interests start at the same time
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5
Q

how can equitable title be held?

A
  • either as JTs or TICs

- unlimited number of equitable co-owners

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6
Q

how do you tell if owners are JTs or TICs?

A
  1. discuss the 4 unities PITT – if they are not present, must be a TIC; AG Securities v Vaughan
  2. look for words of severance – if they are present, must be a TIC
  3. if payment has been through unequal shares equitable presumption of TIC from Bull v Bull
  4. But then look for an express declaration which is usually followed Pink v Lawrence
  5. if nothing to prove intention and equal payment then equity follows the law so presumption of JT if possible
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7
Q

what should you look for at the initial creation of the trust?

A

1) complies with formalities? s53(1)(b) LPA
2) who are the co-owners?
3) who holds legal title?
4) who holds equitable title?
5) equitable title held as JTs or TICs?

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8
Q

explain a JT

A
  • deemed a single entity at law
  • have 4 unities
  • no identifiable shares between them
  • right of survivorship - on death interest passes to other JTs regardless of will
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9
Q

explain a TIC

A
  • only need unity of possession
  • own individual but undivided shares
  • can be proportional shares to your financial contributions
  • no right of survivorship but receiving party can only be a tenant at equity
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10
Q

what case law helps show if a property is held as JT or TIC?

A
  • presumption of TIC for business properties Lake v Craddock

- depends on the facts eg Stack v Dowden TIC implied in a domestic setting

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11
Q

what is the general case law on severance

A
  • Grindal v Hooper cannot contract to never sever
  • Wright v Gibbons one person can be both a JT and a TIC
  • Goodman v Gallant severance results in an equal share regardless of contributions
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12
Q

what statute governs severance? how can it be achieved

A

s36(2) LPA

  • notice in writing
  • acts or things which amount to severance
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13
Q

what acts or things constitute severance?

A

Williams v Hensman

  • act operating on own share
  • mutual agreement
  • mutual conduct
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14
Q

what is required of a notice in writing for severance?

A
  • Re Draper’s Conveyance no formalities or signature needed
  • must evidence immediate intention to sever
  • must be served on the other JTs
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15
Q

explain the need for an immediate intention to sever

A
  • Re Drapers Conveyance - asking for share “immediately” satisfied
  • Harris v Goddard - asking for a property adjustment “at some point in the future” did not satisfy
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16
Q

how do you serve a notice of intention to sever?

A
  • must be on all other JTs
  • s196(3) LPA - can serve in person or by ordinary post to last known abode/place of business
  • Kinch v Bullard - by ordinary post, takes effect as soon as letter arrives at the property
  • s196(4) LPA special post - deemed delivered as soon as posted unless returned undelivered
17
Q

explain how an act operating on the party’s own share can sever

A

unilateral act requiring no notice or service

includes:

  • total alienation - sale or gift Ahmed v Kendrick
  • partial alienation - mortgage First National v Hegarty
  • involuntary alienation - bankruptcy Re Gorman
  • but not by will
18
Q

explain how mutual agreement can sever

A
  • a moment when there is agreement that they should sever.
  • no formalities but must be mutual
  • Burgess v Rawnsley - elderly couple where the man fell in love, then they agreed to to sell and a price, then he died. Agreed a sale of the share and a price so mutual agreement to have separate shares
  • Gore & Snell v Carpenter + Nielson-Jones v Feddon - need a final agreement to sell or sever
19
Q

explain how mutual conduct can sever

A
  • no clear authority about when it happens
  • look for a course of ongoing behavior pointing to separate shares
  • long term assumptions or ongoing negotiations could point to mutual conduct Gore and Snell v Carpenter
  • physical division is unlikely to be enough on its own Greenfield v Greenfield
  • inconclusive negotiations may satisfy
20
Q

what case law shows how inconclusive negotiations may sever by mutual conduct

A
  • Burgess v Rawnsley - inconclusive negotiations could constitute severance
  • Davis v Smith - inconclusive negotiations severed because 1) they had decided their shares 2) they had taken legal advice 3) they had expressed an intention to sever
21
Q

What are the elements that should be considered in a dispute between co-owners

A

1) trustee powers and duties
2) application to court
3) or application for sale in bankruptcy
4) protection of beneficial interest

22
Q

how do trustee powers relate to disputes between co-owners?

A

1) ss6 & 7 TLATA trustees have powers of an outright owner
2) but need to consult with beneficiaries and consider their interests ss10 and 11 TLATA
3) must give effect to wishes of the majority of beneficiaries in value

23
Q

what if no agreement can be reached by trustees and beneficiaries in a dispute

A
  • trustee will make an application to court under s14 TLATA 1996 for an order relating to trust property
  • any party with an interest can make an application
  • court considers a range of options under s15 TLATA
24
Q

how does the court use s15 TLATA

A

1 pre-TLATA case law is relevant Mortgage Corp v Shaire
2 technically gives all factors equal weight but really favours interests of creditors Bank of Ireland v Bell “first among equals”
3 original purpose of the trust is crucial

25
Q

what factors are in s15 TLATA

A

o intentions of trustees
o purpose of trusts
o children; creditors
o wishes of the beneficiaries – i.e. the majority

26
Q

what case law relates to s15 TLATA applications?

A

1) Re Buchanan-Wollaston - trust’s purpose continued
2) Re Evers - purpose was a family home, and this continued even though the husband had left
3) Jones v Challenger - purpose was a matrimonial home but no children and marriage ended so purpose had ended

27
Q

what does the court do if the application is made by a trustee in bankruptcy?

A
  • If the application for sale is being made by a trustee in bankruptcy then s15 TLATA is excluded (s15(4) TLATA 1996).
  • s335A Insolvency Act 1986 applies instead
  • bankrupt owner’s share vests in trustee in bankruptcy s306(1) IA 1986
28
Q

How do courts apply the IA 1986?

A
  • different set of factors to consider set out in s335A IA 1986
    o Innocent co-owner; creditor; spouse; children
    o For the first year, all the factors are equal. After one year, the creditor’s interest becomes paramount unless exceptional circumstances can be shown.
     Needs of the bankrupt party are not taken into account s335A IA 1986
29
Q

what constitutes ‘exceptional circumstances’ for the purposes of the IA 1986?

A

 Re Haghighat – postponement until the bankrupt father could find a property that could accommodate a child with cerebral palsy
 Re Raval and Nicholls v Lan ¬– spouse suffered from paranoid schizophrenia so postponement of order of sale
 Re Mott – son declared bankrupt and postponement until his elderly mother died
 Re Bremner – bankrupt had terminal cancer and his wife had exceptional circumstances in needing to care for him
 Re Citro – disruption to education is not exceptional

30
Q

how does human rights law relate to s335A IA 1986

A
  • S335A does not constitute exceptional circumstances
    o Barca v Mears
    o Donohoe v Ingram
  • And it does not conflict with article 8 Ford v Alexander
31
Q

will the beneficial interest of the other owners of co-owned land be binding on a purchaser after a court-ordered sale?

A
  • Normally a purchaser must pay purchase monies to 2+ trustees to overreach beneficial interest s2 and 27 LPA 1925
  • But a court ordered sale automatically constitutes overreach s2(1)(iv) LPA 1925

5. Land Law (8 decks)

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