s7 Co-Ownership Flashcards
what does co-ownership mean?
co-ownership exists where two or more people hold an interest in the same estaete. And each co-owner has an equal right to possession over the whole land.
types of co-ownership?
- joint Tenancy
2. Tenancy in Common
what is considered a joint tenancy?
It must be established that each co-worker has an identical interest in the land and that is vested at the same time, in order to create a joint tenancy.
Thus, the co-owners must comply with the “four unities”:
- Unity of Time
- Unity of Title
- Unity of Interest, and
- Unity of Possession
what is considered as tenancy in common?
A tenancy in common exists where two or more co-owners hold an interest in land in proportionate/comparable share size.
Also, co-ownerships that do not satisfy the four unity requirements for a joint tenancy will be regarded as tenancies in common provided each tenant has a right of possession.
what is the main difference between joint tenancy and tenancy in common?
Each tenant in common has a distinct share in the property which has not been divided among the co-tenants. However, each tenant in a joint tenancy have the same interest in the same land as a whole. Therefore, the tenants in common have quiet seperate interest.
Also, tenants in common do not get the right of survivorship like tenants in joint tenancy.
what is the creation requirement for proving the existence of a joint tenancy?
Co-owners’ intention should be clearly expressed or implied
Common Law: where there is no express or implied intention to create one or other co-ownership arrangements, the presumption is that a joint tenancy is created. It is then necessary to rebut this presumption to establish a tenancy in common- Public Trustee v Pfieffle (1999) 1 VR 19.
Statutory Presumption: of joint tenancy exist and it can be rebutted by a contrary intention - s30(2) Transfer of Land Act 1958 (Vic).
Equity:
In despite of legal presumption of a joint tenancy, what factors are taken into account under equity jurisdiction to presume the existence of a tenancy in common?
- where the parties have contributed to the purchase price in unequal contribution, equity will presume a tenancy in common.
- where the parties have acquired the land under a partnership
- the parties have acquired the land as mortgagees - Vickers v Cowell (1839)
- when there is a business relationship for the purposes of profit (in this case a business lease on a property in unequal shares) Malayan Credit Ltd v Jack Chia -MPH Ltd.
In domestic situation, is the presumption of joint tenancy exist under Equity?
Yes, in domestic situations the right of survivorship through a joint tenancy is often intended by the parties, though a range of financial, emotional and familial factors must be considered - Stack v Dowden.
Does domestic presumption of joint tenancy exist under Common law?
In Trustee of the Property of Cummins (2006), the High Court held that marriage relationships necessarily support joint tenancy arrangements.
can a co-owner be sued for trespass for entering in the property without permission of the other?
No a co-owner cannot be sued for trespass, unless a co-owner wrongfully excludes another co-owner by force Biviano v Natoli (1998)
