Trusts of Land

Question 1

What are the 4 unities required for a joint tenancy

Answer 1

PITT

• Possession
• Interest
• Title
• Time

Question 2

Describe the difference with regards interest in the case of joint tenancies vs. tenants in common.

Answer 2

In JTs no co-owner can claim to be entitiled to a specific arithmetical or proportional share of the land or its value.

TICS hold in undivided shares. Each tic has a distinct share in property which has not yet been divided among teh co-owners.

JT has right of survivorship - each JT holds nothing by himself and yet holds the whole together with the others (Coke)

Severance of JT: Goodman v Gallant [1986] Fam 106 : ‘it is of the very nature of a joint tenancy that, upon a severance, each takes an equal aliquot share according to the number of joint tenants..’

Question 3

LPA 1925, s 1 (6)

Answer 3

A legal estate is not capable of subsiting or of being created in an undivided share in land or of being held by an infant

Consequences:

• The legal title can only be held by the co-owners as a ‘joint tenancy’: 1925 Law of Property Act: (s1(6)LPA; s34(4), s 36(2))
• JT= right of survivorship - each JT holds nothing by himself and yet holds the whole together with the others (Coke)
• Severance of JT: Goodman v Gallant [1986] Fam 106 : ‘it is of the very nature of a joint tenancy that, upon a severance, each takes an equal aliquot share according to the number of joint tenants..’

Question 4

In non-family home cases where there is no-express declaration what is the standard approach

Answer 4

Although there is a presupmtion of JT ( as per Stack v. Dowden and Marr v. Collie) it is more easily rebutted by unequal purchase price/business context etcs

• Lord Brightman in Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] 1 AC 549 at 559GH approved the view that a joint tenancy in equity is rebutted where the legal owners “have provided the purchase money in unequal shares”.
• Intention is key: where 2 people hold the property for business purposes as ‘it is improbable that they would intend (NB) to hold as joint tenants in equity’.

Question 5

Define Severance

Answer 5

“Severance…is the process of separating off the share of a joint tenant, so that the concurrent ownership will continue but the right of survivorship will no longer apply. The parties will hold separate shares as tenants in common”,

Dillon LJ in Harris v Goddard [1983] 1 WLR 1203

Question 6

What is the main reason a party will seek to sever their share in a joint tenancy?

Answer 6

To avoid the right of survivorship

Question 7

JT or TIC?

Unity of possession is met, but all other unities are missing

Answer 7

TIC

Question 8

JT or TIC?

Four unities are met and there is an express declaration of a tenancy in common is made.

Answer 8

Declaration of tenancy in common conclusive

Gissing v Gissing HL, Goodman v. Gallant CA

Question 9

JT or TIC

Four unities are met and there is an express declaration of a joint tenancy.

Answer 9

This will be a joint tenancy – the express declaration of a joint tenancy is conclusive.

Question 10

Four unities are met, there is no express declaration but there are words of severance

Answer 10

• Words of severance indicate that the parties are to have their own individual and separate shares.

E.g. if Greenacres is conveyed to Tom and Lucy ‘to share and share alike’ then, in the absence of an express declaration of joint tenancy, they will hold the equitable interest as tenants in common, even though the four unities are met

Question 11

JT or TIC?

Four unities are met, there is no express declaration and no words of severance but there is equal contribution to the purchase price

Answer 11

JT

The parties will hold the equitable interest as joint tenants as they have made an equal contribution to the purchase price and there is no express declaration or words of severance to indicate anything to the contrary

Question 12

Four unities are met, there is no express declaration, no words of severance but the purchase price is paid in unequal shares.

Answer 12

Starting point is benefical title mirrors legal title therefore starting point is JT or TIC in equal shares. ( at least in teh context of family homes see Marr v. Collie)

Can be rebutted by the context/intetnions of the parties. Will be rebtutted more or less easily on the basis of the domestic/consumer context.

Question 13

JT or TIC?

Four unities are met in a solely business partnership.

Answer 13

TIC

Here, even if the purchase price is paid in equal shares, a tenancy in common will be presumed as it is presumed that they wouldn’t want the right of survivorship to operate.

Question 14

JT or TIC?

Four unities are met when two or more people lend money on a mortgage.

Answer 14

TIC

Here, even if the mortgage money is lent in equal shares, it is presumed that the two or more people lending money will hold their security for the money as tenants in common.

Question 15

What is the policy reason for restricting legal ownership only to joint tenancy

Answer 15

If you had a legal tenancy in common it would make selling property a nightmare as everyone people on the legal title would have their own individual interests in it

Question 16

What are the 4(5) metods of severance

Answer 16

1. Statutory method of severance - s.36 LPA 1925
2. Person acting on his own share - Williams v Hensman (1861)
3. Mutual agreement - Williams v Hensman (1861)
4. Course of dealing ( mutual conduct) - Williams v Hensman (1861)
5. Homicide