Land: Co-Ownership of Land Flashcards
How can a legal estate be held is by more than one person?
Only as joint tenancy
What is the effect of person in joint tenancy dying vs tenancy in common?
Joint Tenancy
- survivorship applies
- so goes to other joint tenant(s)
Tenancy in Common
- passes through will or intestacy
What are the limits and requirements for joint tenants?
- limit of 4 (as trustees of land)
- must be 18 and of sound mind
What is needed for beneficial interest to be held as tenants in common?
Declaration of trust
How can you bring joint tenancy to an end?
Severance of the beneficial interest
- by written notice
- by unilateral act
- mutual agreement
- by mutual conduct
Severance by written notice process
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
Severance by unilateral act
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
Severance by mutual agreement
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
Severance by forfeiture
If one joint tenant kills another the right of survivorship will not apply
- should not benefit from the crime
How to courts decide if tenancy in common or joint tenancy exists?
Starting point is joint tenancy (equity follows the law)
- unless there is clear evidence of intention to the contrary
How can a buyer take land free from beneficial interest that are under trust?
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
How can overreaching be achieved if there is only one legal owner?
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
How might you be able to see if there is a behind the scenes beneficial interest that needs to be overreached?
Form A restriction on the proprietorship register
What must a solicitor do if they are acting on the sale of land that is subject to beneficiaries holding beneficial interests?
Duty to consult and take into account the wishes of beneficiaries
- at least a majority of them
What can be done to solve disagreements between co-owners of land regarding the disposal of a property?
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
