Nature of land and co-ownership

Question 1

When is a right in land legal?

Answer 1

1. it appears in s.1(1) or 1(2) of LPA 1925, and
2. meets necessary formalities

Question 1

Test for fixtures vs chattels

Answer 1

1. degree of annexation,
2. purpose of annexation (permanent improvement, or just greater enjoyment?)

Question 2

Interests capable of being legal

Answer 2

• easements and profits
• rentcharges
• charges by way of legal mortgage
• rights of entry
• interests arising out of operation of statute

Question 3

Interests that can only be equitable

Answer 3

• beneficial interests under trusts
• restrictive covenants
• any estate contract

Question 4

What are home rights, and when do they arise?

Answer 4

Statutory right of occupying the matrimonial home conferred on the non-owning spouse/CP- arises if:
- parties are married/CPs,
- home is/or is intended as matrimonial home

Question 5

What is a licence?

Answer 5

A personal right binding only on the original parties
It can authorise anything, and can be revoked anytime

Question 6

Formalities for a valid deed:

Answer 6

• in writing,
• clear on its face it’s a deed,
• signed,
• witnessed by 1 witness,
• delivered

Question 7

Exception to the need for a deed to create a legal estate/interest in land:

Answer 7

Parol lease: legal even if created orally, as long as:
- must be 3 years or less,
- must take effect in possession,
- tenant must pay market rent,
- landlord must not charge premium (one-off charge instead of rent)

Question 8

To be valid, contract for creation/transfer of rights in land must:

Answer 8

• be in writing,
• incorporate all expressly agreed terms in 1 document,
• signed by/on behalf of all parties

Question 9

To create/transfer EQUITABLE right in land, a written, signed document is required if it’s done by:

Answer 9

• grant of estate/interest only existing in equity,
• grant of estate/interest by someone owning only an equitable right,
• by express trust

Question 10

How must a legal estate in land be held?

Answer 10

As joint tenants (JT cannot be severed)

Question 11

Requirements for a trustee over land:

Answer 11

• must be over 18
• no minimum number
• max. 4

Question 12

2 forms of co-ownership

Answer 12

1. joint tenancy
2. tenancy in common

Question 13

Test for determining whether it’s a JT or TiC in equity:

Answer 13

1. if 4 unities are present, may be a JT or TiC (if not, only TiC!)
2. does a deed transferring land contain an express declaration? (if yes, it’s conclusive)
3. does the transfer deed contain words of severance (if yes, it’s a TiC)
4. does equity presume a JT?

Question 14

What are the 4 unities needed for a JT in equity?

Answer 14

1. unity of possession (each has right to possession)
2. unity of interest (identical rights)
3. unity of title (acquired it from same document)
4. unity of time (acquired interest at same time)

Question 15

Presumption of JT

Answer 15

Equity presumes co-owners are JTs
BUT: can be rebutted if:
- property acquired for business
- unequal contributions to purchase price
- one contributes significantly more to post-purchase money management

Question 16

Can JT in equity be severed by will?

Answer 16

No
Only during lifetime!

Question 17

2 ways of severing JT in equity

Answer 17

1. written notice
2. informal severance

Question 18

Requirements for severance by written notice

Answer 18

1. use appropriate wording (must sever immediately, not express future intent)
2. be deemed as received by all JTs

Signature and consent of others not needed!

Question 19

When is written severance deemed to have been received?

Answer 19

If sent by registered/recorded letter: seemed served if letter not returned as undelivered
Iff sent by ordinary post: served if left at last known place of abode/business of the other JT (even if never received)

Question 20

3 methods of informal severance in Williams v Hensman:

Answer 20

1. unilateral act on JT’s own share (alienation)
2. by mutual agreement (performance not required)
3. mutual conduct

Question 21

Other methods of informal severance:

Answer 21

• bankruptcy
• homicide
• post-purchase money management

Question 22

Effect of severance if there are 2 JTs

Answer 22

Both become TiCs in equal shares (legal estate still held as JTs)

Question 23

Effect of severance if there are 3 or more JTs

Answer 23

Only person severing becomes TiC, getting a share proportionate to the number of owners (others continue holding as JTs)(all still hold legal estate as JTs)

Question 24

Resulting trust of land arises when:

Answer 24

• person not holding legal title made contribution to the purchase price,
• there’s no evidence it was a gift/loan,
• contribution was a part of the price at the time of purchase (not afterwards)

Interest held = proportionate to contribution

Question 25

2 situations in which a constructive trust arises:

Answer 25

1. agreement + detrimental reliance on the agreement
2. conduct + direct financial contribution to the purchase price

Question 26

How the beneficial shares are decided where a constructive trust arises

Answer 26

Based on what’s “fair”

Question 27

Factors the court considers in making orders on how trustees should exercise their power (eg. whether to sell property):

Answer 27

• intentions of person who created the trust,
• purposes for which property is held,
• welfare of minors occupying/reasonably expected to occupy the property
• interests of secured creditors
• interests of adult beneficiaries who are entitled to an interest in possession

Non-exhaustive list!

Question 28

In deciding what to order trustees to do, which takes precedence: creditors’ interests, or child’s/sick co-owner’s interests?

Answer 28

Creditors’ interests, especially if mortgage debt is rising