🌾Land: co ownership and trusts Flashcards
What is co ownership
Where more than one person owns land at same time
Any land subject to co-ownership is automatically held on trust
How can a trust of land arise
- Landowner intentionally sets up trust by transferring title to land to trustees
- Implied trust: Person acquired interest in land owned by another due to conduct
- Co-ownership: land acquired by more than one owner jointly
Effect of co-ownership on sale of land
□ Trustees must exercise deed to transfer legal title
□ Beneficiaries entitled to receive proceeds
Requirements for trustees of land
18 years old
Max 4 (will be first 4 named adults on deed)
No min
What happens if you attempt to transfer land to a minor
declaration of trust for them
What are the powers of a trustee of land
□ Generally, have ‘all the powers of an absolute owner’, inc right to sell, mortgage, purchase for occupation of beneficiary
□ When selling, must consult with beneficiaries over 18 with an interest in possession and comply with wishes of majority in value
meaning of interest in possession
entitled to immediate possession (as opposed to interest in remainder)
Ways to co own land
Joint tenants: Undifferentiated ownership, right of survivorship
Tenants in Common: undivided (distinct) shares, no right of survivorship
How to determine if equitable interest held as JT or TiC
- 4 unities? (possession, time, interest, title)
- Express declaration in deed/conveyance
- words of severance in deed
- Equity presume a TiC? (partnership/business prop, lenders, unequal contrib to purchase price of non home)
if 4 unities only=JT
Explain the 4 unities
1possession (each entitled to possession of whole land and cant exclude the other co-owners)
2. interest (in property, of same nature/duration)
3. title (all receive interest under same doc)
4. time (All acquire interest at same time)
JT=all must be present
TiC=just need possession
1 missing=TiC
If all present=can be joint tenancy or tenancy in common, go to 2nd test
Examples of words of severence indicating the co owners intended to own separate shares in the property
‘To A and B in equal shares’
‘To A and B equally’
‘Among A and B’
‘Between A and B’
‘Half to A, half to B’
When will equity presume a TiC?
- Partnership property/property bought on behalf of business
- Lenders-relation between lenders is that of tenants in common (rare)
- Unequal contributions to purchase price-equity (size of share proportionate to contribution)
What is severance?
process of converting equitable joint tenancy to a tenancy in common.
Can severance occur when 1 co owner is dead?
No, must be inter vivios/when tenant is alive
7 methods of severance
- Formal written
- Alienation (sale, gift, mortgage, lease, contract to dispose of equitable interest)-must be signed writing
- Mutual agreement
- Mutual conduct over time
- Homicide
- Bankruptcy
- Post acquisition money management
Requirements for formal written severance?
- In writing
- Use appropriate wording-express desire to end JT immediately
- Correctly served on ALL other JT:
a. Handing notice
b.OR Postal rules:
-Registered/recorded post: sufficiently served if letter not returned via post office, even if other tenant never saw it
Ordinary post: sufficiently served if left at last known place of abode or business in UK of person to be served (even if not received & didn’t matter who sent it )
Requirements for severance via alienation
Signed writing
CANT transfer interest in legal estate at same time or this would be severance of legal joint tenancy
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Examples of severance via alienation/what is it?
Unilateral act-where JT in equity disposes of equitable interest by:
1. Sale
2. Gift
3. Lease
4. Mortgage
5. Contract to dispose of equitable interest (if complies with s2 LPMPA 1989 AND capable of being specifically enforceable)
Requirements for severance via mutual agreement
Can be oral
Must be supported by intention to give valuable consideration
Requirements for severance via mutual course of dealing
Must behave in a way they clearly regard themselves TiC over significant period of time
Explain severance via bankruptcy
- Causes involuntary assignment of equitable interest to JTs trustee in bankruptcy
- Once bankruptcy is discharged, equitable interest reverts to co-owner who will continue to hold as TiC
What is severance via post acquisition money management
When fam home bought in joint name of unmarried couple both responsible for mortgage but no express declaration of beneficial interests:
1. Starting presumption=JT in law & equity
2. Presumption can be rebutted by showing they had a diff common intention/later formed common intention that shares would change
3. Common intention deduced objectively from conduct, if cant, is what court considers fair regarding the whole course of dealing
4. Each case depends on facts, financial contribs relevant but also many other factors
When will a resulting trust of land arise?
- Person without legal title makes contribution to purchase price at the time (NOT subsequent to it)
- No evidence contribution was intended as gift/loan
How can a constructive trust of land arise?
a. Agreement, arrangement or understanding (at time of purchase or subsequent) AND non legal owner acted to their detriment or altered their position based on this
b. Common intention inferred from conduct, ie. direct contribution to purchase price AND non- legal owners acted to their detriment or altered their position.
