A more recent version of these Co Ownership notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Land Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
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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