Land 7 - Co-Ownership

Question 1

When land is jointly owned, what is automatically imposed?

Answer 1

A trust of land

Question 2

What are the different ways of creating trusts in land?

Answer 2

1. Express:
   - evidenced in writing
   - signed by declarants
2. Implied:
   - resulting (where property is bought in A’s name but B made financial contribution) or
   - constructive (where unconscionable to deny interest)

Question 3

When is an express trust of land necessary?

Answer 3

• A trust is deliberately created, during lifetime or by will
• Land is gifted to a minor
• Land is bought by more than 1 person in joint names

Question 4

What is a joint tenancy?

Answer 4

• All co-owners are deemed to constitute one single entitle
• All 4 unities are necessary

Question 5

What are the 4 unities of co-ownership?

Answer 5

• Title: all must acquire title from same document
• Time: interests must vest at the same time
• Interest: interest each has must be of same nature & duration
• Possession: no co-owner can be excluded from any part of the land

Question 6

What is a tenancy in common?

Answer 6

Tenants have ‘distinct but undivided share’
Requires only unity of possession

Question 7

What happens to the legal title where land is transferred to more than 4 people?

Answer 7

The first four names who are of sound age and mind will be legal title holders

Question 8

When is there a rebuttable presumption for a tenancy in common?

Answer 8

• Land is a business asset
  AND
• the purchase price was paid for in unequal shares

Question 9

What is survivorship?

Answer 9

• Applies in a joint tenancy, where one co-owner dies
• Notional interest of deceased accrues to surviving joint tenants
• Operates automatically

Question 10

Out of legal and equitable title, which can be severed and how made?

Answer 10

Equitable title:

• notice in writing
• other things (deliberately vague)
• mutual conduct
• mutual agreement
• unilateral act

Question 11

When must severance take place?

Answer 11

During joint tenant’s lifetime i.e. making a will does not sever

Question 12

What is the effect of severance? What will the ownership be?

Answer 12

The joint tenant who severed will hold interest as tenant in common as a distinct share (regardless of contribution), based on no. of former joint tenants.

Question 13

How can severance take place due to ‘other things’

Answer 13

• unilateral act
• mutual agreement
• mutual conduct

Question 14

How can co-ownership disagreements be solved?

Answer 14

Through application to the court (s14 TLTA 1996)

Question 15

What are possible court orders for resolving a co-ownership dispute?

Answer 15

• Sale (can be postponed)
• Orders as to who occupies
• Orders as to nature/extent of a beneficiary’s interest

CANNOT order someone to buy out another

Question 16

What factors must a court consider for a co-ownership dispute?

Answer 16

• Intention of person(s) who created the trust
• Purpose for which property is held (if still continuing, giving greater weight)
• Welfare of any minor who occupies/expected to occupy (weight varies depending on age/independence)
• Interests of secured creditors

Question 17

If severed by notice, who must the be served on?

Answer 17

• all other equitable joint tenants (but not other tenants in common).