Land: Co-Ownership of Land Flashcards

1
Q

How can a legal estate be held is by more than one person?

A

Only as joint tenancy

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2
Q

What is the effect of person in joint tenancy dying vs tenancy in common?

A

Joint Tenancy
- survivorship applies
- so goes to other joint tenant(s)

Tenancy in Common
- passes through will or intestacy

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3
Q

What are the limits and requirements for joint tenants?

A
  • limit of 4 (as trustees of land)
  • must be 18 and of sound mind
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4
Q

What is needed for beneficial interest to be held as tenants in common?

A

Declaration of trust

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5
Q

How can you bring joint tenancy to an end?

A

Severance of the beneficial interest

  1. by written notice
  2. by unilateral act
  3. mutual agreement
  4. by mutual conduct
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6
Q

Severance by written notice process

A

Giving other joint tenant(s) notice ion WRITING of desire to do so

Must
- show clear intention to sever joint tenancy
- be sufficiently served

Service
- left at last know place of abode or business in the UK
- Sent by registered post to person’s abode or business

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7
Q

Severance by unilateral act

A

Need not be known by other joint tenants
- selling/gifting share (new owner is tenant in common)
- mortgaging or leasing share (or fraudulently trying to do so over whole property)
- bankruptcy of joint tenant

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8
Q

Severance by mutual agreement

A

If they all mutually agree to sever it

OR Conduct
- such as negotiation that has not been concluded
- parties making wills inconsistent with joint ownership

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9
Q

Severance by forfeiture

A

If one joint tenant kills another the right of survivorship will not apply
- should not benefit from the crime

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10
Q

How to courts decide if tenancy in common or joint tenancy exists?

A

Starting point is joint tenancy (equity follows the law)
- unless there is clear evidence of intention to the contrary

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11
Q

How can a buyer take land free from beneficial interest that are under trust?

A

Overreaching
- purchase money to be paid to all trustees
- must be paid to at least 2 trustees or one trust corporation

This transfers the beneficiaries interest from land into purchase money

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12
Q

How can overreaching be achieved if there is only one legal owner?

A

Must ensure second trustee is appointed

OR

buyer may obtain written release form beneficiary of their rights by having them sign contract prior to exchange

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13
Q

How might you be able to see if there is a behind the scenes beneficial interest that needs to be overreached?

A

Form A restriction on the proprietorship register

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14
Q

What must a solicitor do if they are acting on the sale of land that is subject to beneficiaries holding beneficial interests?

A

Duty to consult and take into account the wishes of beneficiaries
- at least a majority of them

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15
Q

What can be done to solve disagreements between co-owners of land regarding the disposal of a property?

A

Trust of Land & Appointment of Trustees Act

Section 14
- trustee or any person with interest in land subject to trust
- can apply to courts for an order relating to trustees duties including
- order to sell or order relieving trustees of the duty to obtain beneficiaries consent

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16
Q

TLATA Section 14

A

Allows trustee or any person with interest in land subject to trust to apply to courts for order to:
- order to sell
- order to relieve trustees of duty to obtain beneficiaries consent
- to relieve trustees to duty to consult beneficiaries
- declare the nature and extent of a persons interest in property

17
Q

TLATA Section 15

A

Sets out factors court must consider in determining an application for order under section 14:
- intention of the person(s) who created trust
- purpose for which property subject to trust was held
- welfare of any minor who occupies or might reasonably be expected to occupy trust land as their home
- interest of any secured creditor of any beneficiary