Land 2 - Co-ownerships and Trusts

Question 1

Trust of land?

Answer 1

Intentionally sets up trust
Implied trust

Trustees legal owners.
Beneficiaries equitable

Question 2

Legal estate

Answer 2

Undivided shares.
Must be held as joint tenancy.

Minor cannot be trustee (over 18). Any attempt to convey holds on trust for that minor

Maximum of four trustees. first four named
Have powers of absolute owner.
Duty to consult only as far as practicable

Question 3

Two forms of co-ownership

Answer 3

Legal as joint tenancy

Joint - not held in shares, possible to sever estate into tenancy in common.

Tenancy in common - passes through will. Equal or unequal shares.

Test to indicate joint tenancy
Four unities
-unity of possession
-unity of interest (identical joint tenants)
-unity of title - same document
-unity of time

Second test (express declaration)

Third test
-does the deed contain words of severance.
Words that indicate distinctive shares

Four test - does quit presume tenancy in common;
Presumption co-owners will be joint tenants on basis equity follow the law.
-Business use (in common)
-Unequal contributions
-Post-acquisition money management - rebutted if one partner provided greater share.

Question 4

Severance

Answer 4

Must be during life.

Write notice -
use appropriate wording (must be a desire to end immediately)
be received but all other tenants
Registered post - deemed served if not returned
Ordinary posts - serve if left at last known place if abode or business in the UK.

Informal severance

Acts operating on joint tenant’s share;
disposes by sale gift or mortgage.

Mutual agreement -
supported by valuable consideration.

Mutual conduct -

Bankruptcy - once discharged equitable interest reverts to co-owner who will continue to hold as tenant in common.

Homicide

Post acquisition money management;
Equity follows the law
Can be rebutted by common intention
Shares what court considers fair.

Two or more - equal shares
Three or more - only co-owner who severs become tenant in common.

Question 5

Constructive trust

Answer 5

-does not own legal title made a contribution to price
-no evidence as gift or loan
-part or all of purchase price at date of acquisition

Agreement + detrimental reliance;
Must show relied upon agreement to their detriment.

Conduct + direct financial contribution;
Infer common intention.

More holistic approach in Jones v Kernott (2011)
-was it intended non-owning party has beneficial interest
-Common intention deduced objectively from conduct
-no presumption of joint
-court consider fairs in lack of evidence of shares
-resulting trusts not appropriate, constructive trusts preferred.

Above test applies (not Jones)

Question 6

Disputes

Answer 6

S14 TOLATA 1996;
application to court relating to exercise by trustee or declaring nature ad extent of interest in property.

S15 what court should consider
-intention
purposes
welfare of minors
interest of secured creditor of any beneficiary

Court more likely to rode sale when relationship broken down irretrievably and there is no minor children.

Options
Refuse a sale
Order a sale
Refuse but make order regulating right to occupy
In exceptional partition the co-owned property.