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Land Law > W6 Coownership > Flashcards

W6 Coownership Flashcards

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1
Q

What is joint tenancy?

A

When multiple parties (up to 4) are treated as a single owner of the whole property (no shares)

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2
Q

What is required for joint tenancy?

A

Four unities (possession, interest, time, title)
Authority: AG Securities v Vaughan

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3
Q

What is the right of survivorship?

A

If one joint tenant dies, their interest dies with them rather than being passed through will/intestacy
Auth: Re Caines deceased

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4
Q

Does severance affect both legal title and equitable title?

A

No - legal title can only be joint tenancy. Severance only operates on equitable title.

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5
Q

s1(6) LPA 1925

A

Legal estate cannot exist in a share of land - i.e. legal title must be joint tenancy

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6
Q

s36(2) LPA 1925

A

Legal interest cannot be severed
Equitable interest can be severed by notice in writing

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7
Q

What is the result of severance?

A

Equal shares per person as tenants in common (beneficial interest)
Legal title remains joint tenancy

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8
Q

Does severance require the elimination of any joint tenancy?

A

No, can operate severance on one party and leave remaining parties in JT

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9
Q

Goodman v Gallant 1986

A

Facts: Couple purchased a house in sole name of husband, but was agreed between them that wife would have a half share in the beneficial interest. Couple separated, husband transferred the freehold to wife and new partner as beneficial joint tenants. Dispute over whether wife now owned 3/4s of beneficial interest (her original half plus half husband’s share). Court found that when the freehold was transferred, she was named as joint tenant with new partner, so she had half beneficial interest.

Significance: Where a conveyance into joint names expressly declares the parties as joint tenants, then on severance a tenancy in common of equal shares is created.

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10
Q

What are the methods of severance?

A

Written notice
Other acts/things
Mutual agreement
Mutual conduct
Physical division of land

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11
Q

What are the requirements for written notice of severance?

A

Irrevocable, immediate intention to sever (Re Draper’s Conveyance)
Correctly served on all beneficial JTs (Kinch v Bullard)

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12
Q

Re Draper’s Conveyance

A

Facts: Husband and wife bought house as joint tenants, later divorced. Wife applied for order of sale, with proceeds to be divided equally between herself and husband. Order was granted but husband died while still living at the house. Question was whether the wife had severed - her application for order of sale was found to be an irrevocable, immediate intention to sever.

Significance: Example of severance by written notice.

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13
Q

Harris v Goddard 1983

A

Facts: Married couple getting divorced. Application for divorce included hoping for a transfer or settlement of the property. Husband was killed in a car accident before the divorce was finalised. Question was whether severance had occurred - court said severance had not occurred as the wording was not immediate enough.

Significance: Written severance requires immediacy.

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14
Q

Kinch v Bullard 1999

A

Facts: Husband and wife, wife was considering divorce so sent a notice of severance by post. Husband was admitted to hospital before receiving it, and wife changed her mind and destroyed it. Court found that notice had been validly served under s196 LPA and was irrevocable.

Significance: Severance is irrevocable.

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15
Q

s196 LPA 1925

A

How to serve a notice (e.g. to place of last abode, etc)

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16
Q

What other acts/things can amount to severance?

A

Unilateral act operating on own share
Total alienation - give interest to another
Patrial alienation (e.g. mortgage)
Involuntary alienation (e.g. bankruptcy)
Specifically enforceable contract to alienate
Maybe - commencement of litigation

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17
Q

Williams v Hensman 1862

A

Facts: Money on trust for 8 children was invested. One child asked for an advance on their share, the other 7 indemnified the trustee against claims for any shortfall from the advance. Had the effect of severing the joint tenancy into tenancy-in-common.

Significance: Example of severance through “other acts”

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18
Q

First National Securities v Hegerty 1985

A

Facts: Husband and wife in joint tenancy. Husband took out a mortgage on the home, forging wife’s signature. Husband left the country, lender pursued charge over house, wife petitioned for divorce. Court found that applying for the mortgage was a unilateral act upon husband’s own share, and so severance occurred then. Order for sale was permitted, but wife was entitled to half.

Significance: Unilateral act (of fraud) as severance.

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19
Q

Re Gorman 1990

A

Facts: Married couple, joint tenancy. Husband became bankrupt, lender began proceedings. Wife payed arrears and continued to pay instalments. Later, husband applied for an order for sale, contending that they had severed and were tenants in common. Judge ruled that wife was sole beneficial owner. Husband successfully appealed.

Significance: Bankruptcy is involuntary alienation.

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20
Q

Nielson Jones v Fedden

A

Facts: Married couple break up, agree to sell the marital home so husband can buy a smaller house. Wife signed a memo authorising sale and proceeds from it to be used towards a new house. Both corresponded about their respective share of proceeds from the sale. Husband died before sale completed, wife sought declaration that she was solely entitled to the house by survivorship. Court agreed that the memo did not sever, and conduct did not indicate final severance.

Significance: Unilateral declaration of intention does not sever a joint tenancy.

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21
Q

Burgess v Rawnsley

A

Facts: Man and a woman bought a house together as JTs. Man bought it intending to marry the woman, the woman thought they were just going to be roommates. Never moved in together, agreed verbally that man would buy out woman. Woman backed out, man died, and woman tried to claim house by survivorship. Court ruled agreement to buy her out was severance.

Significance: An oral agreement of one JT selling his interest to the other JT is severance, but the sale agreement is not enforceable.

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22
Q

Hunter v Babbage 1995

A

Facts: Divorcing couple were negotiating via solicitor letter. Had agreed that husband would buy out wife’s interest but had not agreed amount or shares of TiC. Court found that severance had occurred, and since no enforceable agreement otherwise, the 50/50 presumption stood.

Significance: Severance operates independently of the agreement to sever, so still occurs even if the agreement is not implemented.

23
Q

Gore and Snell v Carpenter 1990

A

Facts: Husband and wife divorcing, husband committed suicide. While negotiating divorce, had agreed one house would go to wife and one to husband but not conclusive. Husband never served severance notices, despite lawyer’s advice. Court found that no severance had occurred, as agreements between them were not final, and severance can only be effected by unilateral dealings with a third party.

Significance: Intention to sever is not severance. Negotiations are not severance until final. Severance by dealing only occurs with third party, or other JT if finalised.

24
Q

Davis v Smith 2011

A

Facts: Married couple negotiating divorce with solicitors. Agreed to sell the house and divide mostly equally, taking into account an endowment policy. Both were advised to serve notices of severance, but neither had when one of the couple died. Judge found that the parties had a common intention to sell the house and divide equally, they knew they were both advised by solicitors, and knew that they would be dividing assets equally.

Significance: Severance by mutual conduct. Court should concentrate on words, actions, and knowledge between the parties, not between a party and their solicitor.

25
Q

Greenfield v Greenfield

A

Facts: Brothers bought freehold as joint tenants and converted into two maisonettes. Court found that conversion and separate occupation was not inconsistent with joint tenancy. Burden to prove severance was on the plaintiff, and she failed to do so.

Significance: Separation of land can be severance but depends on whether it’s inconsistent with joint tenancy.

26
Q

What does TOLATA stand for?

A

Trusts of Land and Appointment of Trustees Act 1996

27
Q

What is an ordinary dispute?

A

A dispute over joint tenancy where no parties are bankrupt

28
Q

s14 TOLATA

A

Allows trustees to apply for court order

29
Q

s15 TOLATA

A

Lists matters which court will consider when deciding application for court order

30
Q

When applying s15 TOLATA, whose interests do courts generally favour?

A

Secured creditors

31
Q

Re Buchanon-Wollaston’s Conveyance

A

Facts: Multiple JTs buy land in front of their homes so the view isn’t obstructed, and covenant not to part with the land except with unanimous consent of all parties or by majority vote. One JT tried to get a court order for sale. Court refused - court will not assist a breach of contract.

Significance: While a JT can request a court order for sale, per trust law, court will not grant it if it undermines a contract.

32
Q

Jones v Challenger

A

Facts: Married couple getting divorced. Severed interest, so were tenants in common. Wife moved out, husband stayed in house. Wife applied for an order for sale - was granted since the trust no longer served its purpose (matrimonial home). Wife should be allowed to realise her half of the investment (otherwise was receiving no benefit).

Significance: One of two trustees for sale can insist on the execution of the trust for sale if that will not defeat the purpose of the trust and he is a person whose voice should be allowed to prevail.

33
Q

Re Ever’s Trust

A

Facts: Man and common law wife bought a house as JTs. They had one child together and two children from previous relationship lived with them. When splitting, they failed to agree on a sale. When deciding on the order for sale, court considered the interests of the children as the underlying purpose of the trust, and said it depends on the circumstances at hand.

Significance: Children’s interest considered as part of purpose of trust.

34
Q

Williams v Williams 1976

A

Facts: Matrimonial home with four children. After separation, wife continued to live there with the children, paying the mortgage herself. Husband applied for order of sale, and wife appealed against it. Court allowed the appeal - the house was bought on trust as a family home, and the family were still living there.

Significance: Appealing an order for sale - purpose of trust of home - children.

35
Q

Mortgage Corporation v Shaire

A

Facts: Lender applied for possession due to mortgage arrears, but children still lived in the house. Court reasoned that post-TOLATA, interests of children were a factor in deciding the order.

Significance: Example of court being nice to children re: mortgage/JT dispute.

36
Q

Fred Perry v Genis

A

Facts: Husband sold counterfeit goods, resulting in claimant getting a charge over husband’s property. Claimant applied for order for sale, despite the fact that husband, his wife, and children were living in the house. Court considered whether the interest of children outweighed interest of secured creditor, and decided that since the creditor was pursuing their legitimate interest after husband’s wrongdoing, that was weighted more heavily.

Significance: Example of court being mean to children re: mortgage/JT dispute.

37
Q

What is the authority for joint tenancy disputes in bankruptcy?

A

Insolvency Act 1986

38
Q

When applying for a court ordered sale under the Insolvency Act, how does the first year of bankruptcy differ from later years?

A

First year, court considers the interest of creditors, conduct of spouse, needs of children, etc
After first year, the interest of creditors outweighs everything unless very exceptional circumstances

39
Q

Barca v Mears

A

Facts: Bankrupt husband, him and his wife had a child with special needs. Creditor trying to make an order for possession. Tried to argue extraordinary circumstances and breach of ECHR. Court still prioritized creditor.

Significance: We all suffer under capitalism.

40
Q

Re Bremner 1999

A

Facts: Husband was bankrupt and had six months to live. Wife challenged order for sale in order to care for husband. Court found they were exceptional circumstances under the Insolvency Act.

Significance: Capitalism can be delayed but not stopped.

41
Q

Re Raval 1998

A

Facts: Schizophrenic woman who would be displaced by an order for possession and sale. Court graciously allowed an additional six months (12 in total) before effecting the order.

Significance: Capitalism can be delayed but not stopped.

42
Q

Other than severance, how to terminate co-ownership?

A

Sale
Partitioning of land
Merger
Survivorship

43
Q

Structure for joint tenancy questions?

A
  1. Explain imposition of trust and deal with formalities
  2. On the initial acquisition of the property, who has legal title and who has equitable title, and how?
  3. Work chronologically through the question, looking for severance and survivorship
  4. Has a dispute arisen? TOLATA vs Insolvency Act
  5. Third party purchaser/overreaching?
44
Q

s34 LPA 1925

A

Conveyances of land to multiple people are done on trust as joint tenants (legal title)

45
Q

s1(1)(a) TOLATA

A

Trust of land is any trust of property which includes land

46
Q

AG Securities v Vaughan 1990

A

Facts 4 rooms in a shared flat. Each person had an individual arrangement with owner, started occupations at different times and all paid different rents. If somebody left, landlord could introduce somebody else. Court held that there was no joint tenancy – interests started at different times, separate documents, and all of them had different obligations to pay different amounts of rent.

Significance: Authority for 4 unities

47
Q

Re Caines deceased

A

Facts: A notice of severance had been written but not served on the deceased’s wife. In lieu of this, the executors of the estate tried to claim that the will was proof of severance by notice. Claim failed - can’t unilaterally sever in a will, so right of survivorship prevailed.

Significance: Can’t sever by will. Authority for survivorship.

48
Q

What is tenancy in common?

A

Tenants have separate but undivided shares of property

49
Q

Does right of survivorship apply to tenancy in common?

A

No

50
Q

Does tenancy in common require the four unities?

A

Only unity of possession

51
Q

What are the trustee powers and duties under TOLATA?

A

Power of absolute owner - s6
Requires consent of beneficiary - s8
Duty to consult - s11

52
Q

What are the beneficiary’s right under TOLATA?

A

Occupation - s12 and 13

53
Q

Bull v Bull

A

Facts: Mother and son bought a house together to live in together, son’s name on the deed. Son later married, mother and daughter-in-law didn’t get along. Son tried to evict mother, but court ruled she was an equitable tenant in common and had equal right of possession.

Significance: Tenants in common both have right of possession. If they can’t live together and can’t agree on a way out, then the trustee should apply for an order for sale.

54
Q

Lake v Craddock

A

Facts: 5 parties bought land for a commercial enterprise, some of them died, they all paid different amounts. Court said they were tenants in common.

Significance: Commercial partners are presumed to have taken tenancy in common since survivorship doesn’t operate fairly on a business.

Land Law (9 decks)

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