SG - Co-ownership

Question 1

Number of co-owners

Answer 1

4 owners o legal estate, s34(2) LPA25

Question 2

Trust

Answer 2

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)

Question 3

Numerous tenants

Answer 3

Joint tenants - in E and L

Tenants in common - only in E

Question 4

Joint tenants

Answer 4

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

Question 5

Tenants in common

Answer 5

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

Question 6

How to know if joint or in common?

Answer 6

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

Question 7

AG Securities v Vaughan

Answer 7

4 unities (possession, interest, title, time) = joint tenancy

Question 8

Bull v Bull

Answer 8

if unequal shares of purchase money - tenants in common in shares same as purchase money

Question 9

Severing joint tenancy

Answer 9

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

Question 10

Notice of severance

Answer 10

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

Question 11

Williams v Hensman

Answer 11

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)

Question 12

Goodman v Gallant

Answer 12

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

Question 13

Ways of bringing an end to co-ownership

Answer 13

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

Question 14

Burgess v Rawnsley

Answer 14

Clear discussion btw the co-owners that they no longer wish to remain joint tenants will be sufficient to serve the tenancy

Question 15

Re Buchanan-Wollaston’s Conveyance

Answer 15

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

Question 16

“secondary” or “collateral-purpose” doctrine.

Answer 16

the duty to sell could not prevail if the secondary purpose were still capable of fulfilment, i.e. to have matrimonial house

Question 17

Re Mayo

Answer 17

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

Question 18

Jones v Challenger

Answer 18

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

Question 19

Re Ever’s Trust

Answer 19

I P acquired in order to provide a home for the couple’s children, sale could be postponed until the children attained majority

Question 20

Judd v Brown

Answer 20

Exceptional circumstances in case of insolvency; giving up the home would have disrupted Mrs J’s chemotherapy treatment

Question 21

Re Bremner

Answer 21

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”

Question 22

Abbey National v Moss

Answer 22

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

Question 23

Mortgage Corp v Shaire

Answer 23

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

Question 24

Bank of Ireland Home Mortgages Ltd v Bell

Answer 24

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