Co-Ownership

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General Principles

Tension between legal certainty & the use of land (emotional value)

Two types of co-ownership:

• Successive interests/consecutive co-ownership - ‘law of settled land’

• Concurrent interests/co-ownership

Joint Tenants & Tenants in Common

Joint tenants:

• 1 title (single entity)

• No proportional ‘share’

  • Gould v Kemp – attempt to leave ‘share’ in will was deemed impossible

  • Input to purchase price is irrelevant

• Right of survivorship

  • Re Caines – a co-owner’s will is irrelevant if they are joint tenants

• Four unities are essential:

  • Possession: entitled to possess all of the land/ possess the fruits of the land

  • Interest: they must have either a freehold or leasehold for the same duration

  • Title: they must derive title from the same document (pre-registeration title could have been fragmented)

    • Leasehold: signing the same lease will usually indicate unity of title

    • Antionades v Villiers – landlord got a couple trying to rent 1 bedroom flat to sign different leases on different days. HL held that it was illusory to suggest they were separate title-holders

  • Time: JT’ interests must start & end on same day

    • This is a real difference in time, not a formal difference

    • HSBC v Dyche – different times

Tenants in common:

• Undivided share in land

• Unity of possession must be present; other unities may be present

• No right of survivorship

• May be the result of severance of a joint tenancy

LPA 1926 and TOLATA have historical significance: they were trying to encourage conveyancing & alienability to break up monopolies; big success in sharing out land ownership

Trusts of Land

Legal title:

• ONLY ever as JT S.1(6) LPA

• Max 4 trustees S.34(2) Trustees Act 1925 who must be

  • Sui juris

  • Over 18

• All 4 unities exist

Equitable title (see ‘Trusts of the Family Home’ doc for the acquisition/quantification of equitable property rights)

• May be JT or TIC

• No age or sui juris

• No limit on number of beneficiaries

• Does not have to be written on the transfer deed

Determining whether equitable title is held as JT or TIC:

• If the interests of title, time & interest are not present = TIC

  • Common through increased use of constructive & resulting trusts (Stack v Dowden)

• If there is an express declaration in writing (S.53(1)(b) LPA) on the conveyance as to the nature of the equitable holding it will be conclusive (Goodman v Gallant) – Land Registry’s Form JO (but not compulsory- criticism from Lady Hale in Stack)

  • Pankhania v Chandegra – there is no room for resulting/constructive trusts where there is express declaration

  • Roy v Roy – unequal contributions as to purchase price not relevant

  • Proprietary estoppel may function against an express declaration Clarke v Meadus (See ‘Licences & Proprietary Estoppel’ doc)

  • Contractual doctrines vitiating consent will operate

• Words of severance are used

  • “in equal shares” Payne v Webb

  • “to be divided between” Fisher v Wigg

  • “equally” can mean either – but the presumption that equity follows the law may be determinative in the absence of other evidence

• No express declaration or words of severance? Equity follows the law EXCEPT where the following counter-presumptions apply:

  • Where court of equity finds right of survivorship inappropriate:

    • Malayan Credit v Jack Chia – business relationships

    • Re Jackson – co-mortgagees

  • Common intention

    • Jones v Kernott unequal contribution to purchase price evidence of common intention as to tenancy in common via constructive trust

    • Laskar v Laskar unequal contribution to purchase price in mixed residential/commercial resulting trust

      • Carlton v Goodman; McKenzie v MzKenzie; Lord Neuberger in Stack v Dowden resulting trusts in family home

Theory behind statutory machinery:

• Curtain principle: trustees have powers over the land

  • Often legal & equitable identities will match in reality

• Overreaching S.2(1)(ii) LPA

  • 2 trustees needed

  • Only overreach equitable shares which can be converted into cash

  • However it can lead to hardship – CoL BS v Flegg – no OI as overreached; powerless

  • If trustee spends equitable owner’s overreaching money - breach of trust remedy

  • S.10 TOLATA does provide an express consent mechanism if the trust is created by a disposition (usually express declaration not informal) for trustee to exercise power of sale

• Survivorship between joint tenant trustees is paperless & automatic

Severance

JT -> TIC (extinguishing survivorship)

Sever to equality

• S.36(2) LPA: Statutory notice. A unilateral method of severance i.e. the other people don’t have to join in: any written communication that reveals an immediate intention to sever (doesn’t need to be formally a notice)

  • Kinch v Bullard: it is enough that the notice is delivered & not read. In this case the claimant delivered a notice but before it was read the other tenant died, so naturally wanted to argue that it...

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