Nature of land and co-ownership Flashcards
When is a right in land legal?
- it appears in s.1(1) or 1(2) of LPA 1925, and
- meets necessary formalities
Test for fixtures vs chattels
- degree of annexation,
- purpose of annexation (permanent improvement, or just greater enjoyment?)
Interests capable of being legal
- easements and profits
- rentcharges
- charges by way of legal mortgage
- rights of entry
- interests arising out of operation of statute
Interests that can only be equitable
- beneficial interests under trusts
- restrictive covenants
- any estate contract
What are home rights, and when do they arise?
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
What is a licence?
A personal right binding only on the original parties
It can authorise anything, and can be revoked anytime
Formalities for a valid deed:
- in writing,
- clear on its face it’s a deed,
- signed,
- witnessed by 1 witness,
- delivered
Exception to the need for a deed to create a legal estate/interest in land:
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)
To be valid, contract for creation/transfer of rights in land must:
- be in writing,
- incorporate all expressly agreed terms in 1 document,
- signed by/on behalf of all parties
To create/transfer EQUITABLE right in land, a written, signed document is required if it’s done by:
- grant of estate/interest only existing in equity,
- grant of estate/interest by someone owning only an equitable right,
- by express trust
How must a legal estate in land be held?
As joint tenants (JT cannot be severed)
Requirements for a trustee over land:
- must be over 18
- no minimum number
- max. 4
2 forms of co-ownership
- joint tenancy
- tenancy in common
Test for determining whether it’s a JT or TiC in equity:
- if 4 unities are present, may be a JT or TiC (if not, only TiC!)
- does a deed transferring land contain an express declaration? (if yes, it’s conclusive)
- does the transfer deed contain words of severance (if yes, it’s a TiC)
- does equity presume a JT?
What are the 4 unities needed for a JT in equity?
- unity of possession (each has right to possession)
- unity of interest (identical rights)
- unity of title (acquired it from same document)
- unity of time (acquired interest at same time)
Presumption of JT
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
Can JT in equity be severed by will?
No
Only during lifetime!
2 ways of severing JT in equity
- written notice
- informal severance
Requirements for severance by written notice
- use appropriate wording (must sever immediately, not express future intent)
- be deemed as received by all JTs
Signature and consent of others not needed!
When is written severance deemed to have been received?
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)
3 methods of informal severance in Williams v Hensman:
- unilateral act on JT’s own share (alienation)
- by mutual agreement (performance not required)
- mutual conduct
Other methods of informal severance:
- bankruptcy
- homicide
- post-purchase money management
Effect of severance if there are 2 JTs
Both become TiCs in equal shares (legal estate still held as JTs)
Effect of severance if there are 3 or more JTs
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)
Resulting trust of land arises when:
- 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
2 situations in which a constructive trust arises:
- agreement + detrimental reliance on the agreement
- conduct + direct financial contribution to the purchase price
How the beneficial shares are decided where a constructive trust arises
Based on what’s “fair”
Factors the court considers in making orders on how trustees should exercise their power (eg. whether to sell property):
- 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!
In deciding what to order trustees to do, which takes precedence: creditors’ interests, or child’s/sick co-owner’s interests?
Creditors’ interests, especially if mortgage debt is rising
