SG - Co-ownership Flashcards
Number of co-owners
4 owners o legal estate, s34(2) LPA25
Trust
In case of co-owners, automatic trust is imposed by statute, the L owners hold the property on trust for themselves in equity (s36 LPA25)
Numerous tenants
Joint tenants - in E and L
Tenants in common - only in E
Joint tenants
co-owners hold P together as joint or group owner; do not hold shares, same as having dog; if one dies, no shares to transfer, still hold P as joint tenants [seen as entity holding the whole of the property]; if last one dies -> right of survivorship, property goes to survivor’s next to kin or one specified in the will
Tenants in common
separate individuals owing the whole of ‘undivided shares’; able to own specific share of property (i.e. 1/3 i 2/3, or otherwise); no right of survivorship
How to know if joint or in common?
1) Look at express declaration:
In unregistered land: declaration in body of conveyances;
in registered - if tenants in common, restriction in Land Register to prevent one owner from selling land, no such restriction if joint
2) Words of severance in documentation:
i.e. half each, equally, in shares, etc.,= tenants in common
3) Presumption in E:
If 4 unities present, then joint tenancy, if some lacking or business partners - tenants in common
AG Securities v Vaughan
4 unities (possession, interest, title, time) = joint tenancy
Bull v Bull
if unequal shares of purchase money - tenants in common in shares same as purchase money
Severing joint tenancy
Co-owners may become tenants in common if they give written notice to others or by ‘such acts or things as would in case of personal estate have been effectual to sever the tenancy in equity’ s36(2)LPA25; no severance of legal estate
Notice of severance
written in any form; left at last known place in UK, sent by post in a registered letter addressed to the person to be served
Williams v Hensman
severance effected by such other acts or things… =
1) by the act of a co-owner operating on their own share (alienation of equitable interest or litigation against others)
2) by mutual agreement (incomplete negotiations insufficient)
3) by a mutual course of dealing (clear an unambiguous pattern of behaviour)
Goodman v Gallant
in absence of agreement to contrary, severing party will take equitable interest in P in equal shares, proportionate to the number of co-owners, regardless of initial contribution to purchase price; ABC would have 75% of shares as joint tenants in equity, D - 25% as tenant in common
Ways of bringing an end to co-ownership
Sale, Merger (buying shares of another), Death (last tenant takes all if joint), Separation (of land), Court order (TLATA96 ss 14-15); if co-owner bankrupt then s 355A Insolvency Act
Burgess v Rawnsley
Clear discussion btw the co-owners that they no longer wish to remain joint tenants will be sufficient to serve the tenancy
Re Buchanan-Wollaston’s Conveyance
About trust for sale; 4n wanted to buy piece of land abutting their properties, covenant promising to keep the land as an open space; 1n sold and applied to the court under s 30 LPA 1925 (duty to sell) for an order to sell the jointly-owned land against the wishes of his co-owners. Could 1n use it to breach other obligations, such as the covenant to preserve the view? No
“secondary” or “collateral-purpose” doctrine.
the duty to sell could not prevail if the secondary purpose were still capable of fulfilment, i.e. to have matrimonial house
Re Mayo
no secondary purpose behind the acquisition of the land- thus unless all co-owners agreed to postpone sale, the Court had no choice but to make an order for sale, absent any bad faith on the part of the co-owner pressing for sale
Jones v Challenger
If property had been bought as a home for a married couple and the marriage was over, the secondary purpose was no longer viable and so the duty to sell would prevail
Re Ever’s Trust
I P acquired in order to provide a home for the couple’s children, sale could be postponed until the children attained majority
Judd v Brown
Exceptional circumstances in case of insolvency; giving up the home would have disrupted Mrs J’s chemotherapy treatment
Re Bremner
Exceptional circumstances test: whether “the problems that would arise following an order of sale are those which are expected to arise from the process of bankruptcy or whether they lie wholly outside that range”
Abbey National v Moss
Mrs Moss inherited home. Daughter wanted joint tenancy to ease its transfer on her mother’s death; house never to be sold; D borrowed £30,000 using the house as security and forged her mother’s signature on the charge; Mrs Moss did not know of the mortgage. They fell out; Chargee made an application for an order for sale under s. 30.
Held: not possible, still secondary purpose, signature forged
Mortgage Corp v Shaire
Mrs S discovered after the death of her partner Mr F that he had forged her name on several charges over their jointly-owned home. One chargee, the Mortgage Corp., brought proceedings under s 14 TLATA 1996 to obtain an order for sale.
Held: No order for sale anymore, protecting families from mortgagees; S had to pay interests on the loan instead
Bank of Ireland Home Mortgages Ltd v Bell
A husband defaulted on mortgage payments and had divorced his wife; child of nearly 18yo; Could a sale be ordered under section 14 of the TLATA 1996 on the application of the mortgagee bank? Yes, H’s mortgage loan had remained unpaid for over 8 years, with a debt-owing exceeding £300,000 (greater than the value of the house)
This debt was much more significant than a consideration of a nearly 18 year old minor, who would not suffer undue hardship if a sale order was made