EXPRESS CO-OWNERSHIP Flashcards
1
Q
TRUST OF LAND
A
- is a mechanisms to allow owners to all have an interest in land at the same time (concurrent)
- trust imposed to simplify the conveyance s53(1) (b) LPA 25 (must be proved by some writing )
- express trust is written
- trust separates legal title from equitable title
2
Q
SEPARATE LEGAL AND EQUITABLE TITLE
A
- legal title always joint tenancy s1 (6) LPA 1925
- owners entitled to whole estate
- equitable title can be joint tenants or tenants in common
- owners can have set shares of property
- not a leasehold
3
Q
LEGAL TITLE
A
- legal title where there is co-ownership there is a trust in land s36 (1) LPA 1925
- the joint tenancy cannot be severed s36 (2) LPA 1925
- owners over age of 18 s1 (6) LPA 1925 minors can hole tenancy in equity
- max no. Of legal joint tenants is 4 s34 (2) LPA 1925 s34 (2) trustee act 1925
4
Q
SURVIVORSHIP
A
- ius accrescendi is the right of survivorship means last man standing
- if a JT ur interest in ownership passes to other JT
- survivorship takes priority over testament Gould v kemp
- tenancy in common only exists in equity so can operate on own share deal with in life and death
5
Q
POSITION IN EQUITY
A
- express trust is stated in writing which is regarded as conclusive goodman v gallant and pankhania v chandegra
- must declare interests in co owned property at acquisition
- if there is no express declaration then court will look at a series of equitable presumptions
- equity follows law here if a JT exists in law is presumed equity follows law and will be a JT in equity but can be rebutted
- equity prefers a TIC
- unequal contribution to purchase price this can be effect in TIC
6
Q
EXCEPTIONS IN JT
A
- if no express declaration court will look at words of severance these words come from case law to indicate tenancy in common
- if no words to indicate that then will be JT
7
Q
PITT TEST
A
1 possession, all must be entitled
2 interest, must be identical
3 time must arise at same time
4 title must have same origin
8
Q
TENANCY IN COMMON
A
- TIC can only be in equity
- only need to satisfy possession element of PITT test (ag securities v Vaughn)
- common law favours JT but equity favours TIC
- TIC represents fairness and certainty kinch v Bullard
- not subject to doctrine of survivorship
9
Q
SEVERANCE
A
- this is process of separating of the share of JT so the right of survivorship will no longer apply
- can only severe in equity Cannot impact legal title
- 5 ways to severe in equity
1) notice in writing - s36 (2) LPA must notify all JT you wish to severe there is not specific format, also must be immediate must provide evidence it’s been delivered s196 (3) LPA (4) says about notice through post 88 Berkeley road and Kinch v Bullard
10
Q
SEVERANCE II
A
2) severance through Williams v hensman
- an act of a JT operating on own share eg sale mortgage can be involuntary act eg bankruptcy re pavlou re Dennis
- mutual agreement can be express or implied burgess v rawnsley
- mutual conduct gore and snell v carpenter greenfield v greenfield
3) homicide but with judicial discretion under s2(5) forfeiture act 1982 re K
11
Q
TOLATA
A
- co-ownership disputes
- trustees have all powers of an absolute owner TOLATA 96
- trustees must consult beneficiaries when exercising any of their powers relating to the land and give effect to the wishes of the majority (according to the value of their shares) only as far as practical s11 (1) TOLATA
- s12 TOLATA enables beneficiary to occupy the land
- can be excluded under s13
12
Q
APPLICATIONS FOR SALE
A
- s14 TOLATA
- any trustee beneficiary or secured creditor of a beneficiary may apply to court for an order relating to exercise any of their powers or to declare the nature and extent of a persons interest
13
Q
TOLATA FACTORS
A
- in making decisions factors court must consider :
- the intentions of people who made trust
- purpose for which property is held eg home for couple Jones v challenger business purposes bedson v bedson
- welfare of any minor so if it is needed as home for child re Evers trust
- interest of any secured creditor
14
Q
BANKRUPTCY
A
- when JT is made bankrupt then share is given to trustee of bankruptcy
- where an application is made under s14 by a trustee in bankruptcy then s15 does not apply
- instead court will be guided by s335A insolvency Act 86 have to look at interest of creditor and then if it’s a couples home to the conduct and financial needs and resources of the bankrupt and spouse and needs of children
- where application is made after year court will assume interest of creditors outweigh other considerations
- unless exceptional circumstances
15
Q
EXCEPTIONAL CIRCUMSTANCES
A
- wife with kids who faces eviction is not exceptional re citro 91
