This is an extract of our Co Ownership document, which we sell as part of our GDL Land Law Notes collection written by the top tier of Cambridge/Bpp/College Of Law students.
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Land Law: Co-Ownership
?????LPA 1925: statutory imposition of a 'trust for sale' in co-ownership. Focused on exchange value of land, land as an investment, impetus to sell.
?????Replaced by TLATA 1996: o Co-owned property held on trust o Trust of land (cf 'trust for sale' under LPA 1925). Now the impetus is not to sell; reflecting land as use value, impetus of retention of land) o S1(1)(a), 'trust of land' = any trust property including land. o S1(2)(a): applies to all types of trust of land, whenever created . o S2(1)(b): all trusts for sale existing as at 1/1/97 converted into trusts of land. o S4, trustees power to postpone sale. o S3, abolition of doctrine of conversion (i.e. abolishes rule that beneficiary interests under a trust for sale were regarded as interests in the proceeds of sale of land; rather than interests in the land itself. o S6(1): trustees have same power of disposition as an absolute owner.
?????Distinction between legal & equitable title: o Legal title: the 'public face'. o Equitable title: where value lies; internal disputes between coowners resolved here, behind curtain of legal ownership, away from purchaser. NATURE of co-ownership (JT vs TIC)
?????All co-owned property (JT and TIC) requires 'unity of possession'---i.e. each co-owner is simultaneously entitled to possession of the whole land.
?????JT, o requires 4 unities (AG Securities v Vaughan), PITT o (1) Possession: each co-owner entitled to possess any part of the land; no co-owner can be excluded from any part. o (2) Interests: interest of each JT must be the same in nature (eg freehold or leasehold); and same duration (eg fee simple or life interest). o (3) Title: all must acquire title under the same document or act.
? Satisfied if: all take rights by same conveyance; or simultaneously take possession together. o (4) Time: interest of each JT vests at same time. [[not about signing the agreement at same time; but with interest taking effect from same start date, even if contracts signed at different times]].
1 o Right of survivorship applies (Re Caines Deceased): when one JT dies, his interest dies with him; does not pass under will or intestacy; survivorship takes effect on death. His interest simply dissipates. Until the ultimate survivor, that JT becomes sole owner.
?????TIC o Needs unity of possession (but not the other 3). o Each individual has a distinct, but 'undivided' share (not physically divided, have unity of possession; but has an intangible % share). o No right of survivorship.
LEGAL TITLE (only as JTs)
?????LPA 1925 abolished legal TIC; legal title only as JTs [[rationale: right of survivorship applies re death of a co-owner; by limiting legal title to JT, a buyer does not have to trace devolution of title of a deceased's trustee's ownership of his/her share of legal estate]].
?????LPA 1925, s1(6): legal title always held as JTs.
?????S36(2): no severance of a legal JT.
?????S6(1) LPA: cannot be held as infants.
?????Max 4 legal owners, s34(2) LPA 1925; s34(2) Trustee Act 1925 o If more than 4 purport to buy legal title; legal title goes to the first 4 adults named in the conveyance.
?????Survivorship applies: when a legal JT dies, his interest dies with him, does not pass under will or intestacy. EQUITABLE TITLE
?????Express declaration = conclusive (Pink v Lawrence; Goodman v Gallant): regardless of contributions; even if 4 unities are present, if expressly says TIC, then TIC. o But still need 4 unities for a JT
?????If no express declaration:
?????For JT, need 4 unities (PITT, AG Securities v Vaughan)
?????TIC if: o Lack of 4 unities (exception unity of possession is also needed for TIC). o Words of severance (i.e. doesn't expressly say TIC, but words to that effect in the grant): o Egs: o 'in equal shares' (Payne v Webb) o 'Share and share alike' (Heathe v Heathe) o 'To be divided between' (Fisher v Wigg) o 'Equally' (Re Kilvert)
2 o These words indicate parties' intention to have 'shares', albeit undivided, in the property, and thus hold equitable title as TICs.
?????Presumptions (against JT): o Purchase money provided in unequal shares (commercial context??) ? presumed TIC in proportion to contributions (Bull v Bull). o CF, for domestic/marriage context, JT presumed if joint legal names, even if unequal contributions [presumption only displaced if can show evidence of contrary common intention]
? Stack v Dowden; Jones v Kernott. o Commercial partnership assets (purchase by commercial partnership) ? presumed TIC, not JT (right of survivorship has no place in business, Lake v Craddock).
?????SO, to have JT, need: o No express declaration of TIC o No words of severance o 4 unities o no presumption against JT applies (commercial context unequal purchase money, Bull v Bull; partnership assets, Lake v Craddock Co-ownership provisions of TLATA
?????s6: general powers of trustees
?????s7: power to partition
?????s11: duty to consult beneficiaries & give effect to their interests as far as poss
?????s12: beneficiary's right to occupy
?????s13: exclusion or restriction of right to occupy o occupation rent: if, as a beneficiary, you've been ousted (under s13, excluded from occupying) (eg for domestic violence of other party; or dispute with other party), you can claim occupation rent from the other party (Re Pavlou; Murphy v Gooch; Re Barcham; Rodway v Landy)
[[though mortgage interest payments might cancel out occupation rent]]
SEVERANCE of a beneficial JT
? ?? ? Severance = converting JT into TIC. o Harris v Goddard, Dillon LJ: ='severance' = 'the process of separating off the share of a JT, so that the concurrent ownership will continue but the right of survivorship will no longer apply'.
??? ?NB: cannot sever legal JT, only equitable---s36(2) LPA 1925.
? ?? ? Effect of severance, EQUAL SHARE: results in an equal share for the TIC, NOT in proportion to contributions made to purchase price (Goodman v Gallant).
3 ? ?? ? Severance must be inter vivos, cannot sever by will (Re Caines) Methods of severance s36(2) LPA
?????(1) notice in writing; or (2) 'other acts or things' Method 1, notice in writing
??? ?s36(2) LPA
??? ?Must be given to all the other JTs, expressly or impliedly showing unequivocal & irrevocable intention to sever immediately.
? ?? ? Requirements: o (1) in writing o (2) showing immediate intention to sever o (3) served correctly
? ?? ? (1) In writing: no form specified, can be any form, no signature needed.
? ?? ? (2) showing an immediate intention to sever o Expressly; or impliedly o Re Draper's Conveyance: (1) a divorce petition could be notice of severance; (2) on the facts, the divorce notice did qualify; showed immediate intention to sever, because asked judge to award immediate sale of the house &
division of proceeds. [[NB, Plowman J not exactly clear what constituted the severance---the summons; or affidavit; or a unilateral act of commencing proceedings. o CF, Harris v Goddard: the wife's divorce petition was too vague to qualify; it made no immediate claim, only asked judge to make 'such property adjustment order as may seem just'.
? (1) insufficient immediacy, wanted a future result
? (2) it did not convey sufficient intent/desire to sever. o Quigley v Masterson: Mrs M's application to court of protection, during Mr P's lifetime, was sufficient to qualify as written notice of severance; made it clear she treated Mr P's share as 50%, and she wished to market the house for sale and divide the proceeds.
? ?? ? (3) Correctly served to all other JTs o s196(3) LPA 1925: must be left at 'the last known place of abode or business' in the UK. o Kinch v Bullard, irrelevant if not seen by all JTs: wife had posted notice of severance to her and husband's joint address; she destroyed her own notice of severance, husband never saw it; but had validly served notice on their joint address, even though he didn't read. ? Neuberger J, s196(3) provides that it has to be delivered/left at that address, then notice is validly served, regardless of whether read. 4
o By registered post (s196(4)): served deemed made when registered letter would ordinarily be delivered; presumed delivered as long as letter isn't 'returned undelivered'. o Re registered post, Re 88 Berkeley Road: partner never saw notice; but validly served, she herself signed for the letter; was served to joint address. Method (2), common law methods, 'other acts or things'
??? ?S36(2): 'other acts or things' as would sever the tenancy in 'equity'.
? ?? ? Wiliams v Hensman, 3 ways re 'acts or things' which can sever: o (1) unilateral act operating on own share (alienation) o (2) mutual agreement o (3) mutual course of dealing
? ?? ? (1) (unilateral) act operating on own share/alienation o A unilateral act; irrevocable act to sever. o [[all must comply with s53(1)(c), disposition of equitable interest]]. o (i) total alienation (sale/gift of share): o At outright disposal in favour of a 3rd party--- (Morgan v Marquis)???. o As is a disposition of equitable interest---must comply with s53(1)(c) LPA, signed writing. o Ahmed v Kendrick, sale: severance by husband selling jointly owned house (forged wife's signature). o CF Penn v Bristol & West BC: no severance, where purchaser colluded in the forgery by husband. o (ii) partial alienation o Where JT charges or mortgages his equitable interest in the property. o First National Securities v Hegerty. o (iii) involuntary alienation---bankruptcy o Re Gorman: bankruptcy---automatic transfer of bankrupt's assets to the trustee in bankruptcy, severing JR. o (iv) (specifically enforceable) contract to alienation (Brown v Raindle) o if JT enters a specifically enforceable contract to dispose of their interest ? equity looks upon that as done which ought to be done (Brown v Raindle). o (v) commencement of litigation?
o Issuing proceedings may be sufficiently unilateral &
irrevocable act to sever. o However, Nielson-Jones v Fedden: said that severance by litigation is not sufficiently irrevocable, proceedings can be withdrawn up to point court issues an order.
? ?? ? NB, CANNOT sever by will (Re Caines)
? ?? ? (2) Mutual agreement o Burden on party alleging severance. 5
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