Unit 2- Trusts of Land

Question 1

How is co-ownership held?

Answer 1

Trust of land

Question 2

What governs trusts of land?

Answer 2

TLATA 2000

Question 3

How is the legal interest of a trust of land held?

Answer 3

Joint Tenancy

Question 4

What are the two ways interests can be held in a joint tenancy?

Answer 4

Joint tenancy- indivisible shares, treated as individual by law

Tenancy in common- individuals with divisible shares

Question 5

How is the equitable interest held?

Answer 5

Joint Tenancy or Tenancy in Common

Question 6

What are the four tests to decide how an equitable interest is held in a trust of land?

Answer 6

1) The four unities
2) Express declaration
3) Words of severance
4) Does Equity pressure a tenancy in common

Question 7

What are the four unities?

Answer 7

Time- did they sign the document at the same time?
Title- did they sign the same document?
Interest- are co-owners’ interests of the same nature and duration?
Possession- are they each equally entitled to use whole premises?

If one missing- TC
If all present- use other tests to confirm JT

Question 8

What is the express statement test?

Answer 8

Has an express statement been made in the transfer document as to how the equitable interest is to be held? If yes this is conclusive (Goodman v Gallant)

Question 9

What is the words of severance test?

Answer 9

Does the transfer document contain any terms that would imply tenancy in common i.e ‘to be held in equal shares’?
If so then tenancy in common- Robertson v Fraser

Question 10

When does equity presume a tenancy in common?

Answer 10

When the transaction is for business purposes

When the co-owners contributed unequal shares to the purchase price (Lake v Gibson)

Question 11

Can the legal title be severed?

Answer 11

No- s36(2) LPA 1925

Question 12

Can the equitable interest be severed?

Answer 12

Yes, through:

• Writing
• Alienation
• Mutual agreement/ course of dealings
• Homicide

Question 13

Is the legal title and equitable interest subject to the right of survivorship?

Answer 13

Legal- yes, if one trustee dies interest passes on

Equitable- no

Question 14

How can the equitable interest be severed by writing?

Answer 14

s36(2) LPA 1925
Must show correct intention i.e. to sever immediately, and not at some later date (Harris v Goddard)

Must be served correctly;

• Delivery to last known address (Kinch v Bullard)
• Special delivery, assumed received unless it is sent back (88 Berkeley Road)

Question 15

How can the equitable interest be severed through alienation?

Answer 15

Must comply with s53(1)(c) LPA 1925

• signed writing
• Gift, sale, mortgage, bankruptcy

Question 16

How can the equitable interest be severed through mutual agreement/ course of dealings?

Answer 16

Mutual agreement- parties expressly agree (Burgess v Rawnsley), oral agreement sufficient to show common intention necessary

Course of dealings- parties act in way that would suggest intended shares to be held as JT (i.e bought for a business)- Morley v Bird

Question 17

How can the equitable interest be severed through homicide?

Answer 17

Re K- if one trustee kills another they don’t get their share

Question 18

What happens to the legal estate if there is only one trustee?

Answer 18

Held as sole surviving owner of the legal estate (can’t have single JT)