Trusts & Coownership Flashcards
Resulting trust:
Contribution to purchase price: share proportionate to contribution (Dyer v Dyer)
Contributions to mortgage payments suffices for resulting trust
Laskar v Laskar
Where property purchased in joint names for joint occupation and both responsible for mortgage: no resulting trust arising from contributing in unequal shares
Jones v Kernott
Constructive trust is based on intention of parties:
Express common intention
Inferred common intention
Lloyds Bank v Rosset
Trustee may require one beneficial owner to pay occupation rent to beneficiary whose right to occupy had been excluded or restricted as way of compensation
Dennis v McDonald
Obligation to pay occupation rent to other beneficiary as compensation does not extent to beneficiaries who voluntarily vacate
Murphy v Gooch: relationship breakdown held not to be voluntary
Trustees can physically partition land to allow different beneficiaries to occupy exclusively
Rodway v Landy
Express declaration to hold as tenants in common: conclusive as to size of shares
Re Pavlou
If there is express declaration as to how equitable title is to be held, this prevails
Pink v Lawrence
No express declaration as to equitable ownership: equity follows law so joint tenancy
Cowcher v Cowcher
If no express declaration as to equitable ownership, joint tenancy unless words of severance present
Eh “in equal shares” (Payne v Webb)
If no express declaration as to equitable ownership, joint tenancy unless unequal contributions to purchase price: undivided shares in proportion to respective contributions
Bull v Bull
Stack v Dowden: no application where family home unless evidence to contrary (confined in Jones v Kernott)
If no express declaration as to equitable ownership, joint tenancy unless property purchased for commercial enterprise
Lake v Craddock
If no express declaration as to equitable ownership, joint tenancy unless coowners are mortgagees (two lenders pool money to give borrower single loan, who grants single mortgage: lenders have tenancy in common)
Morley v Bird
Recognised modes of severance falling under “other acts or things”
Williams v Hensman: Act operating on own share Mutual agreement Mutual conduct Homicide (unlawful killing of another joint tenant = severance (Cleaver v Mutual Reserve Fund)
Severance cannot be done by will
Re Caines
Generally, severed share quantified on basis of equality, irrespective of initial contributions
Goodman v Gallant
x number of joint tenants: each has 1/xth share when sever
Possible to be big both joint tenant and tenant in common at same time over same property
Wright v Gibbons
Divorce documentation should never amount to effective severance as not sufficiently irrevocable
Nielsen-Jones v Fedden
If send written notice to sever by normal post, must prove it actually arrived
Kinch v Bullard
Written notice to sever need not have been read
Re 88 Berkley Road
Entering specifically enforceable contract to sell is act operating on own share to sever
Brown v Raindle
Mortgages beneficial interest: act operating on own share so severance
First National Securities v Hegarty
Bankruptcy = involuntary alienation so severance as act operating on own share
Re Pavlou
Commencement of litigation is act operating on own share so severance provided intention to sever is final at commencement of proceedings
Re Draper’s Conveyance
Mutual agreement to sever must be between all beneficiaries
Wright v Gibbons
Mutual agreement to sever need not be specifically enforceable contract
Burgess v Rawnsley
Mutual agreement to sever must be fixed and unchanging so must go beyond “agreement in principle”
Gore and Snell v Carpenter
Must be unequivocal intention to sever when severing through mutual agreement. Can be implied eh agreeing upon death interests will pass to child
Morley v McDonald
Agreement to merely sell not sufficient to sever through mutual agreement unless also agree to sever proceeds
Davis v Smith
Execution of mutual wills indicates common intention to sever through mutual conduct
Re Wilford’s Estate
Negotiations between joint tenants in relation to each other’s share can result in severance but mere offer and counter offer not sufficient
Burgess v Rawnsley
Where express declaration of trust of land: conclusive as to nature and extent of beneficial rights
Pettitt v Pettitt
Factors under s 15 TOLATA not exhaustive: can consider other factors
Eg interest of disabled adult (First National Bank v Achampang)
Case law pre-TOLATA must be treated with caution
Mortgage Corporation v Shaire (because emphasis has moved from duty to sell to mere power to sell)
Where purpose for which property purchased can still be fulfilled, court inclined not to order sale under s 14 TOLATA
Re Buchanan-Wollaston’s Conveyance
Where purpose property bought was home for couple: relationship breakdown means purpose dead
Jones v Challenger
Presence of minors may sustain purpose for longer (Re Ever’s Trust)
Court inclined to order sale of property under s 14 TOLATA where property too big for sole occupation
Jackson v Jackson
Court may postpone sale of property under s 14 TOLATA to enable coowners to buy out other coowner
Ali v Hussein
Court may postpone sale of property under s 14 TOLATA if one of coowners is ill
Bank of Ireland Home Mortgages v Bell
Court may postpone sale of property under s 14 TOLATA to allow husband and wife to conclude private sale and find alternative property
Mayes v Mayes
Court may refuse to order sale under s 14 TOLATA but order occupying coowner to pay rent to other as compensation
Dennis v McDonald
When determining whether to order sale under s 14 TOLATA (application by trustee in bankruptcy), considerations cannot include needs of bankrupt
Everitt v Budhram: expressly excluded under s 335A Insolvency Act 1986
Order for sale under s 14 TOLATA postponed for 18 months as spouse had schizophrenia
Nicholls v Lan
Order for sale under s 14 TOLATA postponed to 3 months after bankrupt’s death
Re Bremner: bankrupt had terminal cancer with life expectancy of 6 months
Order for sale under s 14 TOLATA indefinitely postponed as spouse had severe illness and restricted mobility
Claughton v Charalambous
Disruption of education not exceptional enough to justify postpone order for sale under s 14 TOLATA
Re Citro
Order for sale under s 14 TOLATA postponed for 3 years as eldest child was severely disabled through cerebral palsy
Re Haghighat
Courts recognised broader interpretation of what qualifies as exceptional may be needed when considering ordering sale under s 14 TOLATA by trustee in bankruptcy to not infringe Art 8
Berca v Mears and Donohoe v Ingram: still not exceptional enough.
Held usual stress and upheaval of selling family home not exceptional
Confirmed s 335A Insolvency Act 1986 does not infringe Art 8
Ford and another v Alexander
