L2 : Co-ownership & Trusts of Land - detailed

Question 1

Malayan Credit Ltd v Jack Chia-MPH Ltd (1986) (HL)

Answer 1

Main point: situation in which equity can presume TIC in equity not limited to purchase in unequal shares, mortgage loan advanced unequally or partnership property

Summary: D and P shared premises for business purpose, got lease as JTs, ag on areas to be occupied by each (unequal) and apportioned rent + charges – dispute arose, P (occupying smaller pt) sought equal division of sale proceeds or equal partition => PC held that TIC in equity bcs intention could be inferred from circumstances

Question 2

Williams v Hensman (1861)

Answer 2

Main point = 3 ways to sever a JT (Sir William Page Wood VC at 557)
(1) by “an act of any one of the persons interested operating upon his own share”
(2) by mutual agreement
(3) by “any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common”

Question 3

Harris v Goddard (1983) (CA)

Answer 3

Main point: notice severing JT must show intention that it be effective immediately

Summary: H & W were JT of freehold title to their home, W left and served divorce petition incl § asking court to make such order as it considered just regarding the house, H died in car crash before divorce hearing, H’s executors claimed that § severed JT

=>CA held that JT not severed : § in divorce petition not a notice within meaning under s36(2) LPA bcs didn’t express intention that severance be effective immediately

Question 4

Burgess v Rawnsley (1975) (CA)

Answer 4

Main point: oral ag to sell share in house = enough for severance

Summary : P and D (both widowed) became friends + brought house ‘as joint tenants’, each providing half of purchase price – P intending to marry D, D only intending to live in upstairs flat – they didn’t marry and D didn’t move in, evidence of oral ag in which D ag to sell her share in the house to P, but subsequently she refused ; P died, P’s administratrix claimed that JT severed in equity vs D claimed right of survivorship

=> CA held that JT in equity had been severed by oral ag to sell the share, even though ag not specifically enforcable

Question 5

Bull v Bull (1955) (CA)

Answer 5

Main point : under trust for sale, TICs are each entitled to possession of premises until sale => neither can turn the other out except by ending co-ownership (by ag or court order under s30 LPA 1925)

Summary : P & his mother M brought house as home for themselves, conveyance in name of P, who provided greater pt of purchase money – M didn’t intend to give P her pt of money. When P married, ag that M would occ only 2 rooms – M ag w/ DIL so P asked her to leave

=> CA held that M = TIC in equity, until house was sold each was entitled to possession of premises and neither could turn the other out

Question 6

Davis v Jackson (2017) (HC)

Answer 6

Main point : occ rent not payable to TIB by default, there must be some conduct of the party in occ or other feature of the case that justifies it

Summary : Enstranged H&W (not living together), W brought house to live in w/ children, re-mortgage deed stating that house held on trust for both H&W as JTs - H went bankrupt, TIB sought declº that JT severed by bankruptcy + claim occ rent ag wife as TIC

=> HC held in favour of wife: default position where co-o in occ and TIB no is that no occ rent payable, there had to be some conduct by occ party or other feature of the case justifying ccl that appropriate / fair to depart from that default position – here, no ag or expectation that H would have right to occupy (never lived in the house or contributed to outgoings)

Question 7

Ali v Khatib (2022) (CA)

Answer 7

Main point : confirmed that co-o not obliged to pay occupation rent merely bcs living in the property and other co-o is not, smth more has to be shown to make it just and equitable for payment of occupation rent to be required (eg exploiting property for personal gain or preventing co-o who wished to occupy from exercising his right) => focus on behaviour of person in occupation

Question 8

Mortgage Corporation v Shaire (2001) (main point)

Answer 8

s15 TLATA gives courts greater flexibility in determining applications for sale of a home => has increased discretion to determine weight to be given to each factor in a particular case, interest of creditors not necessarily > interests of family residing in the property

Question 9

Mortgage Corporation v Shaire (2001) (summary)

Answer 9

D&F lived together as H&W, each w/ BI in home (subj to mortgage) – after F’s death, revealed that F had forged D’s signature, ntb on mortgage charge in favour of C bank – mortgage not repaid so C applied for order for possession and sale under s14(1) TLATA, D resisted on ground that court had to take into acc factors other than chargee’s interest, shouldn’t necessarily be given more weight that her wish to stay in her home

=> Court held in favour of D (declined to make an order): w/ s15 TLATA, P intended to give court wider discretion in determining applications for sale of a home ; interest of chargee only one of the factors to be taken into account, not to be given more importance than the interest of family residing in property – weight to be given to each factor in a particular case = matter for the court’s discretion

Question 10

First National Bank v Achampong (2003) (CA)

Answer 10

Main point : where marriage is effectively over (even though no divorce) and children are adults, interests of creditors outweigh interests of family

Summary: Bank seeking sale of house for non-payment of mortgage, wife under undue influence when signing mortgage (so claiming that void ag her share of property)
=> CA held in favour of bank: legal charge ineffective but equitable charge over H’s estate severed JT ; marriage being over and children grown up meant that interest of using house as family home should be given little weight

Question 11

White v White (2004)

Answer 11

Main point: intention under s15(1)(b) TLATA common intention of persons who created the trust, prior to the creation of the trust (Arden LJ) (+ family home can be ≠ matrimonial home)

Question 12

Bagum v Hafiz (2016) (CA)

Answer 12

Main point: court under s14 can’t direct sale of a BI to another B but does have the power, when making order for sale, to give other B right of pre-emption before sale on the mk

Summary: House owned by 3 TIC = mother (C) and 2 sons, C sought court order for one son to sell his interest to the other or alternatively order for sale in the open market
=> CA upheld judge’s decision that no jurisdiction to order S1’s share to be sold to S2, but court did have power to order Ts to sell the property, and to give one of the Bs right of pre-emption (opportunity to purchase at court-determined price = same eco effect as order sought)

Question 13

Re Citro (1991) (CA) (main point)

Answer 13

Where spouse w/ BI in family home becomes bankrupt, interests of creditors will usually prevail over interests of other spouse, and order for sale be made within short period – circumstances must be exceptional for order to be postponed longer (more than ordinary csq of debt & improvidence)

Question 14

Re Citro (1991) (CA) (summary)

Answer 14

2 brothers declared bankrupt, all each had was their ½ share of BI in matrimonial homes, debt owed by each exceeded value of their interests – B1 separated from his wife (who lived in house w/ 3 kids), B2 lived in his home w/ wife and kids – TIB applied to court for sale of the homes, Hoffman J at 1st instance made orders for possession & sale, to be postponed till youngest child was 16

=> CA allowed TIB’s appeal and reduced period of postponement to 6m – where spouse w/ BI in family home becomes bankrupt, interests of creditors will usually prevail over interests of other spouse, and order for sale be made within short period – exceptional circumstances to postpone order longer need to be more than ‘the ordinary consequences of debt and improvidence’

Question 15

Barca v Mears (2005)

Answer 15

Bk owned and occupied property, used to live w/ former partner and child, now child staying for ‘substantial part of every week’ – Bk resisting TIB application for sale bcs would disrupt education of child (w/ special edº needs, incl concentration and coordination pb which father was helping him w/) – ag that hardship caused to child = special circumstances

=> Court held in favour of TIB, circumstances here were not sufficiently exceptional to justify postponement of the order (child’s special edº needs not extreme + sale of property would not require him to change schools bcs could live w/ mother)

Question 16

Williams and Glyn’s Bank v Boland (1981) (HL)

Answer 16

H = RP of matrimonial home, W had contributed substantial sum to purchase => H held on trust for himself and W as TIC, H mortgaged house to bank (made no enquiries abt W), and defaulted, bank sought possession

=> HL held that wife in actual occupation (within meaning of s70(1)(g) LRA 1925) => equitable rights as TIC protected by reason of her occupation = made her interest overriding => binding on the bank (bcs had only been dealing w/ one trustee = H)

Question 17

Bristol and West BS v Henning (1985) (CA)

Answer 17

D1 & D2 = cohabiting couple w/ children, D1 brought house w/ mortgage from BS = C, conveyance in D1’s named but D2 did lots of wk on the house (incl building & decoration), some intention that D2 get ½ BI but nothing in writing – D1 left and defaulted, BS sought possession

=> CA held in favour of BS: Ds didn’t declare any trust in writing or reach any express ag abt BI + not enough evidence of intention for CICT so D2 didn’t have any EI capable of taking priority over bank’s charge

Question 18

City of London West BS v Flegg (1988) (HL)

Answer 18

Main point : disposition (incl charge by way of legal mortgage) by two or more trustees or a trust corporation overreaches any BI in the land (under s2(2) LPA 1925)

Summary: married couple + wife’s parents (Ds) purchased house, registered in names of couple but Ds contributed to purchase price  house held on trust by couple for all 4 as TIC – couple remortgaged the house without knowledge of Ds, and defaulted, BS sought possession
=> HL held in favour of BS : D’s BI in the property had been overreached (bcs BS dealt w/ 2 Ts ≠ Boland)

Question 19

Equity and Law Home Loans Ltd v Prestidge (1992) (CA)

Answer 19

Main point: possible to impute B’s consent to mortgage where it is used to repay a first mortgage

Summary: Ds = unmarried couple who brought a house, registered in D1’s name but D2 contributed to purchase, balance raised by mortgage (D1 alone resp for repayment) – D1 remortgaged (without knowledge of D2) to P company (knew of D2’s occº), used most of the 2nd loan to repay the 1st but kept remainder for his own use – D1 left and defaulted, P sought possession

=> CA held in favour of P : D2’s EI subordinated to mortagee’s rights in relation to amount used to repay 1st, D2’s consent to the mortgage could be imputed notwithstanding her lack of knowledge of it bcs otherwise D2 would get a windfall (removal of 1st mortgage charge which she consented to over her EI)