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Property: Co-ownership > Webcast > Flashcards

Webcast Flashcards

1
Q

What does statute say about co-ownership and trusts?

A

S34 - 36 LPA 1925 as amended by TOLATA imposes a trust on all co owned property.

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2
Q

In a trust, who are the trustees?

A

The legal owners of the estate.

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3
Q

In a trust who are the beneficiaries?

A

Those who have an equitable interest in the land.

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4
Q

Who can be a trustee?

A

S34(2) LPA 1925 says there can be no more than 4 trustees, this is to simplify the conveyancing process. S34 also prevents a minor from being a trustee.

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5
Q

True or false.

3 business partners together purchase the freehold of an office. This is an example of co ownership?

A

True.

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6
Q

True or false.

3 business partners all but freehold property. They are adults so the property will not need to be held on trust?

A

False. A trust is required with all co ownership (s34 - 36 LPA 1925 as amended by TOLATA).

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7
Q

3 business partners all but freehold property. They all contributed to the purchase price and were all named as transferee in the transfer document. Are they trustees or beneficiaries?

A

They will all be both beneficiaries and trustees of the property.

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8
Q

P and B together with their daughter buy a property. All of them contributed to the purchase price. Who is trustee and beneficiary?

A

Only P an B can be trustees unless their daughter is 18 or older.

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9
Q

What does TOLATA do?

A

It governs how trusts are run - it sets out the powers and duties of trustees and beneficiaries.

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10
Q

Who does TOLATA apply to?

A

Only trusts of land s1(1)(a) says a trust of land means any trust property which consists for includes land.

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11
Q

What is the role of the trustees?

A

To look after the interests of the beneficiaries under the trust.

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12
Q

What powers does a trustee have?

A

S6(1) gives trustees all the powers of an absolute owner.

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13
Q

As an absolute owner, can the trustees do what they want with the property?

A

No s6(5) TOLATA provides that the trustees must have regard to the rights of the beneficiaries and s6(6) provides they must not act contrary to any rule or law of equity.

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14
Q

Imagine a trust where the trustees are different people to the beneficiaries and they decided to sell the property. They have the power to sell if it is in e interests of the beneficiaries. However they sold it at a discounted price to their spouses. What does this mean?

A

It would breach s6(5) and s6(6) having no regard to beneficiaries interests, only their own by selling it to their spouses and one of the rules is that they must not profit from the trust.

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15
Q

Are there any restrictions on the trustees powers?

A

S10 states that an expressly created trust can impose an obligation for consent for any dealings with the land (usually a beneficiary). S11 says they have a duty to consult with beneficiaries and give effect to wishes of the majority.

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16
Q

What if the trustees disagree with what the beneficiaries want?

A

They do have the power to override if they think the beneficiaries wishes are not consistent with the general interest of the trust.

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17
Q

Does a beneficiary have the right to occupy trust property?

A

S12 TOLATA says the right arises if:
The purpose of the trust is to make the trust land available for occupation OR
The trustees hold the land so as to be available AND
The land is suitable for occupation

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18
Q

What is the purpose of s13 TOLATA?

A

It sets out some conditions on the right to occupy.

  • if 2 or more beneficiaries are entitled to occupy, e trustees can exclude 1 or more but not all of the beneficiaries and must act reasonably in doing so
  • trustees can impose reasonable conditions on the occupying beneficiaries
  • an occupying beneficiary may be required to pay pentathlon to an excluded beneficiary, example rent.
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19
Q

Who has the standing to apply to court for an order in relation to trust properties?

A

S14(1) TOLATA says that an application to resolve a dispute can be made by any trustee of land or any person who has an interest in the land.

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20
Q

What must the courts consider when determining an application under s14 TOLATA?

A

S15(1) says the court must consider:

  • the intentions of the person who created the trust
  • the purposes for which the trust property is held
  • welfare of any minor who is or might be expected to be in occupation
  • he interest of any secured creditor of any beneficiary
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21
Q

How can a trustee in bankruptcy order a sale of a property?

A

Under s14 however TOLATA cannot be used. The court uses the criteria in s335(a) of the insolvency act 1986.

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22
Q

What are the details of s335(a) of the insolvency act 1986?

A

The court shall make an order having regard to:

  • interests of the bankrupts creditors
  • all circumstances other than the needs of the bankrupt

In addition where the property was the home of the bankrupt or their spouse:

  • conduct of spouse insofar as contributing to bankruptcy
  • needs and financial resources of spouse
  • needs of any children

After 1 year the courts shall assume the interest of the creditors outweigh all other considerations.

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23
Q

Viscount M died last year and in his will established a trust of a stately home, Grandville Hall. He intended the East Wing should be let out to provide an income to the beneficiaries, while the rest of the hall (West Wing and central building) should be available for the beneficiaries to live in. D and all were the trustees. Beneficiaries were B, M and H. They were living abroad at the death and now wish to occupy Grandville Hall. West Wing was badly damaged by fire. East Wing and central building are in good condition and currently unoccupied. Is it correct that the trustees can currently refuse any of the brothers to occupy the west wing?

A

Yes as the property is not fit for occupation, it has been damaged by fire (s12 TOLATA).

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24
Q

Viscount M died last year and in his will established a trust of a stately home, Grandville Hall. He intended the East Wing should be let out to provide an income to the beneficiaries, while the rest of the hall (West Wing and central building) should be available for the beneficiaries to live in. D and all were the trustees. Beneficiaries were B, M and H. They were living abroad at the death and now wish to occupy Grandville Hall. Is it correct that the trustees must not allow any of the brothers to occupy the east wing since it was intended to be let out to provide an income and was not intended for occupation?

A

No, although the purpose is to provide an income they can permit a beneficiary to occupy if it is available for occupation (s12 TOLATA).

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25
Q

Viscount M died last year and in his will established a trust of a stately home, Grandville Hall. He intended the East Wing should be let out to provide an income to the beneficiaries, while the rest of the hall (West Wing and central building) should be available for the beneficiaries to live in. D and all were the trustees. Beneficiaries were B, M and H. They were living abroad at the death and now wish to occupy Grandville Hall. The trustees must allow at least one of the brothers to occupy the central building?

A

True. They can only stop the other 2 if they had good reason (s13(1) TOLATA).

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26
Q

Viscount M died last year and in his will established a trust of a stately home, Grandville Hall. He intended the East Wing should be let out to provide an income to the beneficiaries, while the rest of the hall (West Wing and central building) should be available for the beneficiaries to live in. D and all were the trustees. Beneficiaries were B, M and H. They were living abroad at the death and now wish to occupy Grandville Hall. If B occupied e central building and M and H did not, B could be required to pay compensation to his brothers?

A

True combined effect of s13(3) and s13(6).

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27
Q

Viscount M died last year and in his will established a trust of a stately home, Grandville Hall. He intended the East Wing should be let out to provide an income to the beneficiaries, while the rest of the hall (West Wing and central building) should be available for the beneficiaries to live in. D and all were the trustees. Beneficiaries were B, M and H. They were living abroad at the death and now wish to occupy Grandville Hall. The trust will have to use some of its income to pay for the gas and electricity that B uses in occupying he central building, given the purpose if the trust was that a beneficiary should be able to occupy that part of the property?

A

False s13(3) trustees can impose any reasonable conditions on them which can include paying the bills.

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28
Q

2 years ago F and G bought Long Acre as a home in which to bring up their 2 children and as a place F could work as a sculptor. Together they paid the whole of the purchase price and it is registered in both names. 3 months ago G left F and has contacted her saying he wants Long Acre sold so he can have some capital to buy a place in his own. Since F does not want to sell it G has said he will seek an order to force sale. Is G eligible to apply to court for an order under TOLATA 1996?

A

Yes he is (s14 confers a status on any trustee or person so an interest).

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29
Q

2 years ago F and G bought Long Acre as a home in which to bring up their 2 children and as a place F could work as a sculptor. Together they paid the whole of the purchase price and it is registered in both names. 3 months ago G left F and has contacted her saying he wants Long Acre sold so he can have some capital to buy a place in his own. Since F does not want to sell it G has said he will seek an order to force sale. Under TOLATA s15(1)(a-d) there are train matters that a court has to take into account considering as application. Is it likely the court will make an order in Gs favour?

A

No, their intention when they bought the property was to use as a family home and a place for F to work and it is still satisfying those functions. S15(1)(a-c) are satisfied.

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30
Q

D and E co own a property as beneficial joint tenants. E is made bankrupt. Bankruptcy severs a joint tenancy. Is it correct that severance occurs because the bankruptcy order operates as a written notice to sever under s36(2) LPA 1925?

A

No. It is severed by conduct under the case of William v Hensman.

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31
Q

D and E co own a property as beneficial joint tenants. E is made bankrupt. Bankruptcy severs a joint tenancy. The trustee in bankruptcy can apply for an order of sale because under s14 TOLATA he is a trustee of the property?

A

False. The application can be made under s14 TOLATA by any trustee or person with interest in it. Trustee in bankruptcy obtains the beneficial interest.

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32
Q

D and E co own a property as beneficial joint tenants. E is made bankrupt. Bankruptcy severs a joint tenancy. The court will consider the trustee in bankruptcy’s application for an order of sale under the provisions of s15 TOLATA?

A

False, bankruptcy is one occasion where s15 does not apply. They will consider the application under s335A of the insolvency act 1996.

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33
Q

What are the two types of co ownership?

A

Joint tenants or tenants in common.

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34
Q

What is joint tenancy?

A

Each owner is seen as entitled to the whole intent in the property. They are seen as one unit.

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35
Q

What is the right of survivorship?

A

It’s a consequence of co owning when one party dies. The party who dies, their interest will be extinguished on death, the other party will become the sole owner.

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36
Q

What would happen if the person that died as a joint tenant left their half to someone else in their will?

A

Nothing due to the right of survivorship. The person named in the will would get nothing.

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37
Q

Does the right of survivorship apply to tenants in common?

A

No as each has a distinct share in the property.

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38
Q

Can trustees who own both the legal estate be tenants in common?

A

No they must be joint tenants (s1(6) LPA 1925.

39
Q

Can beneficiaries be joint tenants or tenants in common?

A

Both.

40
Q

What are the four unities?

A 
4 requirements that must be satisfied for a joint tenancy to exist. 
Unity of possession
Unity of interest
Unity of title
Unity of time
41
Q

What does unity of possession mean?

A

Each co owner is equally entitled to possession of the whole property.

42
Q

What is the unity of interest?

A

Each co owner must have an identical interest in the property, example both own freehold or leasehold.

43
Q

What is unity of title?

A

Co owners must acquire title from the same document (transfer deed) TR1.

44
Q

What is unity of time?

A

They must all receive their interest at the same time.

45
Q

For a joint tenancy to exist what needs to be met?

A

All four unities, if one fails they will become tenants in common.

46
Q

For a tenancy in common to exist what needs to be met?

A

The unity of possession only.

47
Q

A and B are joint tenants in law and equity. They have equal shares in the house. True or false?

A

False, the concept of shares does not exist in a joint tenancy.

48
Q

What does the doctrine of survivorship apply to?

A

Joint tenancy only.

49
Q

A and B own a house and are joint tenants in law and equity. They argue and B writes his will to leave his interest in the house to D. B dies. Who owns the beneficial interest in the house?

A

A due to the doctrine of survivorship.

50
Q

The four unities must exist for which type of co ownership to exist?

A

Joint tenancy.

51
Q

J and M buy a leasehold flat together. If they are equally entitled to possession of the flat, acquire title from the same document, and at the same time, will this mean the four unities are present?

A

Yes.

52
Q

J and M buy a leasehold property together. The document used to transfer the title to them is a TR1. Will this satisfy the requirements of the four unities?

A

Yes. Using TR1 suggests they obtained the same interest, through the same document at the same time and this will entitle them both to equal possession.

53
Q

Why do we refer to tenancy in common as having undivided shares?

A

Because undivided means each co owner is equally entitled to possession of the whole property.

54
Q

What if co owners make a written statement when purchasing a house to say what they want to be?

A

Goodman v Gallant says this statement will be binding unless it was made fraudulently or by mistake.

55
Q

What happens if co owners do not make a statement of if they will be tenants in common or joint tenants on the TR1 form?

A

Equity presumes they should be tenants in common.

56
Q

If the four unities are present then they will be joint tenants. True or false?

A

False. Where they do exist it simply enables them to have a joint tenancy.

57
Q

The cad of Goodman v Gallant is authority for what?

A

Where co owners expressly declare they wish to be joint tenants, this is conclusive in the absence of fraud.

58
Q

Where co owners contribute unequally to the purchase price and have not declared the form in which they wish to co own the property, equity will always impose a tenancy in common to reflect their differing contributions? True or false.

A

False, it is only a presumption in equity which can be displaced by evidence. This will never apply to a family home (Stack v Dowden).

59
Q

What is severance?

A

Where you can sever your beneficial joint tenancy to become a tenant in common.

60
Q

What is severed?

A

The beneficial tenancy, you can never sever at law (s36(2) LPA 1925).

61
Q

When severance occurs what share will each own?

A

Goodman v Gallant says they will come out with equal shares, it will not reflect original contributions.

62
Q

What happens if 3 people are beneficial joint tenants and one severs?

A

The one that severed will become a tenant in common and the other 2 will remain joint tenants.

63
Q

A and B are joint tenants in law and equity. A severs and dies. What happens?

A

The doctrine of survivorship applies at law as a joint tenancy cannot be severed at law (s36(2) LPA 1925).

64
Q

In 2005 L and J buy a house. J pays 1/3 and L 2/3. TR1 states they are beneficial joint tenants. In 2011 L severs the joint tenancy and travels the world. In 2012 L dies climbing Everest. In her will she left everything to K. In 2005 how did j and L own the property?

A

As joint tenants in law and equity.

65
Q

In 2005 L and J buy a house. J pays 1/3 and L 2/3. TR1 states they are beneficial joint tenants. In 2011 L severs the joint tenancy and travels the world. In 2012 L dies climbing Everest. In her will she left everything to K. What is the effect of Ls severance at law?

A

She remains a joint tenant (s36(2) prevents it from ever being severed).

66
Q

In 2005 L and J buy a house. J pays 1/3 and L 2/3. TR1 states they are beneficial joint tenants. In 2011 L severs the joint tenancy and travels the world. In 2012 L dies climbing Everest. In her will she left everything to K. What is the effect of Ls severance in equity?

A

She becomes a tenant in common.

67
Q

In 2005 L and J buy a house. J pays 1/3 and L 2/3. TR1 states they are beneficial joint tenants. In 2011 L severs the joint tenancy and travels the world. In 2012 L dies climbing Everest. In her will she left everything to K. What happens on Ls death?

A

The doctrine of survivorship applies at law.

68
Q

In 2005 L and J buy a house. J pays 1/3 and L 2/3. TR1 states they are beneficial joint tenants. In 2011 L severs the joint tenancy and travels the world. In 2012 L dies climbing Everest. In her will she left everything to K. After Ls death J and K are the trustees. True or false?

A

False. Doctrine of survivorship applies at law.

69
Q

In 2005 L and J buy a house. J pays 1/3 and L 2/3. TR1 states they are beneficial joint tenants. In 2011 L severs the joint tenancy and travels the world. In 2012 L dies climbing Everest. In her will she left everything to K. After Ls death J and K become the beneficiaries. True or false?

A

True.

70
Q

In 2005 L and J buy a house. J pays 1/3 and L 2/3. TR1 states they are beneficial joint tenants. In 2011 L severs the joint tenancy and travels the world. In 2012 L dies climbing Everest. In her will she left everything to K. K inherits Ls share in equity. What is the size of that share?

A

1/2 Goodman v Gallant.

71
Q

In 2005 L and J buy a house. J pays 1/3 and L 2/3. TR1 states they are beneficial joint tenants. In 2011 L severs the joint tenancy and travels the world. In 2012 L dies climbing Everest. In her will she left everything to K. J is the sole owner at law. In equity J and K are tenants in common in equal shares?

A

True.

72
Q

A, B and C are beneficial joint tenants. What happens if A severs the joint tenancy in equity?

A

A becomes a tenant in common and the others remain joint tenants.

73
Q

How can severance happen?

A

S36(2) LPA 1925 requires joint tenants to give written notice to sever to other joint tenants.

74
Q

Is there is a special form to give notice of severance?

A

No form or format needed (Re Drapers).

75
Q

What must the notice say to be sufficient to sever?

A

Harris v Goddard shows it must have an immediate intention to sever and they must make clear they have the intention to sever and become a tenant in common.

76
Q

What if an intention to sever is not expressly stated?

A

The wording should make some direct or indirect reference to the co owner having a share in the property.

77
Q

What is an acceptable way of serving a notice?

A

S196(4) says it can be served by registered or recorded delivery to the last known place of abode or business address
S196(3) says the notice can be left at, or affixed to, the last known place of abode or business
Kinch v Bullard says it also include service by post.

78
Q

What did the court decide in Kinch and Bullard?

A

All that was required for service under s196(3) was proof that it had in fact been left at the address. Therefore ordinary first class post is acceptable if it could be shown the postman had in fact delivered it.

79
Q

What if the notice is not received by the addressee?

A

Kinch v Bullard and Re 88 Berkeley Road show that provided the notice is correctly served it doesn’t’ have to be received by the addressee.

80
Q

Could someone serve a notice of severance and then change their mind?

A

If the letter was validly served, severance will occur. The change of mind would need to be communicated before the notice was served (Kinch v Bullard).

81
Q

G and B bought a property as joint tenants. They argued and G wrote to B sell the house and send me my share of the sale proceeds. Is this an intention to sever?

A

It probably shows an intention to sever. It depends on the interpretation to sell.

82
Q

G and k co own a property. K decides to leave and go to London. When she left she wrote on the mirror in the hall in lipstick, I want my share of the value of this house immediately so I can get a proper place to live. Has she severed?

A

Yes, it does not matter she wrote it on the mirror (Re Drapers with regards to form) (s36(2) LPA 1925).

83
Q

Under s196 of the LPA a notice is only validly served if it is sent by recorded or registered post. True or false?

A

False, Kinch v Bullard says it can be ordinary post and s196(3) states just left at the place.

84
Q

Under both s196(3) and s196(4) a notice is adequately served if it is left either at the last known place of abode or at the last known place of business or the person to be served. True or false?

A

True.

85
Q

Will the court accept that a notice of severance has been properly served, even if it is not delivered in accordance with s196 LPA 1925 providing their is evidence the addressee did actually receive the notice of severance. Example delivery to a holiday home?

A

Yes s196 says sufficiently served which means methods not specified by act the act can ok provided the notice is actually received.

86
Q

What ways can you sever the beneficial joint tenancy in common law?

A

Williams v Hensmann said:
By an act operating on ones own share or
Through mutual agreement or
Through mutual conduct

87
Q

What does the phrase, operating on ones own share, mean?

A

When a co owner deals with his potential share in some way, example, sell beneficial interest, granting a mortgage over the interest or becoming bankrupt.

88
Q

What is through mutual agreement?

A

Meaning all joint tenants agree that one or more of them will hold their interest as a tenant in common, this does not need to be legally enforceable (Burgess v Rawnsley).

89
Q

What does through mutual conduct mean?

A

All of the joint tenants act towards each other in a way that makes clear they treat themselves as being tenants in common. Their behaviour shows it.

90
Q

A and husband P bought a house in 2000 as joint tenants in law and equity. In 2011 P announced he was leaving to start a new life in Spain. He requested S buy his share of the property as he needed the money now. S said she would consider doing so and would have the property valued but did nothing further. P left and 2 months later sent a postcard saying S I have found a bar out here I want to buy, please sell the house and send me my share of the proceeds as soon as possible. When P requested S buy out his share as he needed money now, this is severance by unilateral conduct under Williams v Hensmann. True or false?

A

False, unilateral conduct requires a legally binding action such as the sale of an interest.

91
Q

A and husband P bought a house in 2000 as joint tenants in law and equity. In 2011 P announced he was leaving to start a new life in Spain. He requested S buy his share of the property as he needed the money now. S said she would consider doing so and would have the property valued but did nothing further. P left and 2 months later sent a postcard saying S I have found a bar out here I want to buy, please sell the house and send me my share of the proceeds as soon as possible. P requesting S buy him out now and her getting the property valued is severance by mutual agreement. True or false?

A

False, mutual agreement can be reached informally but it does require actual agreement.

92
Q

A and husband P bought a house in 2000 as joint tenants in law and equity. In 2011 P announced he was leaving to start a new life in Spain. He requested S buy his share of the property as he needed the money now. S said she would consider doing so and would have the property valued but did nothing further. P left and 2 months later sent a postcard saying S I have found a bar out here I want to buy, please sell the house and send me my share of the proceeds as soon as possible. P ask S to sell now and her having the property valued is severance by mutual conduct. True or false?

A

False, it requires both parties are thinking in terms of a tenancy in common. S thinking about it and getting it valued does not indicate this.

93
Q

A and husband P bought a house in 2000 as joint tenants in law and equity. In 2011 P announced he was leaving to start a new life in Spain. He requested S buy his share of the property as he needed the money now. S said she would consider doing so and would have the property valued but did nothing further. P left and 2 months later sent a postcard saying S I have found a bar out here I want to buy, please sell the house and send me my share of the proceeds as soon as possible. The sending of the postcard is likely to meet the requirements for severance by written notice. True or false?

A

True, meets form, content and service.

94
Q

What is co-ownership?

A

Where 2 or more people have an interest in the ownership of the same property at the same time.

Property: Co-ownership (2 decks)

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