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Co Ownership Notes

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Coke, commenting in Littleton said "Each joint tenant holds the whole and holds nothing, the whole jointly and the nothing separately.''
Types of Co-ownership
Express co-ownership - where 2 or more people expressly set out to own land together at the same time (the parties have interests at the same time as opposed to successively - e.g. Greenacres is sold to Tom and Lucy - a trust is imposed to simplify the conveyancing). 3.)
Implied co-ownership (constructive and resulting trusts) - where one person is the legal owner of the land but another person has acted in such a way that he will acquire an interest in the land by implication - e.g. by contributing to the cost of the property - such an interest arises under a trust.

Joint Tenancy
A joint tenancy arises where each joint tenant holds an identical right, shared with the other joint tenants, to the whole of the property. None of the joint tenants have a distinct or separate interest or title of possession - the interest of each joint tenant is indistinguishable (Aoun Investments v Chief Commissioner of
State Revenue).

The essential characteristics of a joint tenancy include the right of survivorship and the presences of the four unities.

Each joint tenant is subject to the right of survivorship as a matter of law, which operates automatically on the death of one joint tenant. When a joint tenant dies, their interest is extinguished, and the interests of the surviving joint tenants is correspondingly enlarged. Ultimately, sole ownership of the property passes to the last surviving joint tenant. The operation of this right of survivorship can only be avoided if the joint tenancy is terminated in the joint tenant's lifetime.
Thus, if land is held as part of a joint tenancy, a joint tenant can't leave his interest in his will, nor will it pass under rules of intestacy as the joint tenants own the whole together, they don't have individual interests in the land which can be passed on.  Some argue this makes right of survivorship unfair as it means that whoever lives the longest ends up owning the land absolutely.
Burton v Camden LBC 2000
- B and another held a JT for a property protected as a periodic tenancy under the Housing Act 1985 - other person wished to vacate, terminate lease -
assigned her portion of the JT to B by deed - HoL held that regardless of the manner in which the other tenant attempted to convey her right to B, the nature of the tenancy was unchanged - assignment was invalid, shares could not be assigned - B's right to the property ceased when the other tenant ended their role in the JT.
KEY RULE: only a joint tenancy can exist at common law as a legal estate is incapable of existing in divided shares - s.1(6) LPA.
COMMON LAW: creation of a JT at common law must comply with the necessary formalities.
Requires a deed - s.52(1) LPA
Registration is also required - s.27(1) LRA
Can be created by an express declaration of trust - s.53(1)(b) LPA
Also arises by operation of law i.e. resulting/constructive trust - s.53(2)
Tenancy in Common
A tenancy in common will arise where 2 or more people hold separate shares in a property. Each tenant in common is entitled to possession of the whole land and holds a distinct share in the property - an 'undivided' share. There is no right of survivorship; on the death of a tenant in common, their interest passes pursuant to their will of in accordance with the rules of intestacy.
Tenancy in common requires only the unity of possession (all tenants have a right to possess all of the land). The other 3 unities don't have to be satisfied.

Each tenant has the right to enjoy the whole property, single tenants cannot claim exclusive possession over their share.
Lawson and Rudden in "The law of property" equate this principle to shares in a company, each person can alienate, separate or pass on their share in death but they can't claim their share. i.e. They can't claim half a house.

1. Words that suggest an intention to divide the property create a tenancy in common Robertson v Fraser

2. In registered land, a TR1 form can let the people write how they divide the land

3. Seen as equity follows the law Stack v Dowden, will be overruled where they contribute different amounts to the purchase price CICT
KEY RULE: only a joint tenancy can exist at common law as a legal estate is incapable of existing in divided shares - s.1(6) LPA.
Creation of a JT at common law must comply with the necessary formalities.
Requires a deed - s.52(1) LPA
Registration is also required - s.27(1) LRA If the four unities are present, and there is no evidence to the contrary - in the form of a clear expression or words of severance - the common law assumes a joint tenancy. This presumption may be rebutted where the instrument of transfer or conveyance includes words of severance - that is, words which indicate that the co-owners have separate shares instead of having a joint interest in the property. Examples include;

'In equal shares'
'To be divided between'
'Share and share alike'
'To be distributed among them in joint and equal proportions'

S34 Trustee Act 1925 - maximum number of people who can be on the legal title is 4 - simplifies the law as it means that the maximum number of signatures that will be required to effect the sale of a legal title is 4.
LPA 1925 s.1(6): 'A legal estate is not capable of subsisting or of being created in an undivided share in land'.

LPA 1925 s.34(1): 'An undivided share in land shall not be capable of being created'.

LPA 1925 s.34(2): 'Where, after the commencement of this Act, land is expressed to be conveyed to any persons in undivided shares and those persons are of full age, the conveyance shall
(notwithstanding anything to the contrary in this Act) operate as if the land had been expressed to be conveyed to the grantees, or, if there are more than four grantees, to the four first named in the conveyance, as joint tenants in trust for the persons interested in the land'.

Equity will generally follow the common law, so where the co-ownership is a joint tenancy at law, equity will agree. There are, however, 3 situations where equity will not follow the law.

1. Where there has been unequal contributions to the purchase price of the land.

2. Where there are investment contributions by mortgagees under a mortgage

3. Where the land is purchased as a partnership asset - proportionate to the shares contributed.
In these circumstances, equity will deem the co-owner's joint tenants at law holding legal estate on trust for themselves as tenants in common.
Express Declaration
Goodman v Gallant 1986 GM sought to argue she held 75% of the beneficial interest in her former matrimonial home as she had already held 50% and contributed extra money to the purchase of the remainder - in the absence of fraud or mistake, a declaration of trust is conclusive as to the parties' respective ownership rights -
the extent of parties' respective contributions is irrelevant - the severing JT is invariably credited with an equal share.
If deed states that own as joint tenants - contributions are irrelevant - you want to own it jointly, so it doesn't matter who has contributed more to the purchase as you are joint tenants - that is the key and decisive principle.
Formality Requirements - LPA 1925 s.53(1)(b): 'a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust'. E.g.
Land Registry TR1 form.
If not clearly declared as a joint tenancy: 'anything which in the slightest degree indicates an intention to divide the property must be held to abrogate the idea of a joint tenancy, and to create a tenancy in common' (Robertson v Fraser (187071) LR 6 Ch App 696, per Lord Hatherley LC).

Implied Declaration
Resulting Trust.
Constructive Trust.
See Lecture 11 (Family Home).
Section 35(1) of the PLA 1974 (Qld) provides that a disposition of the beneficial interest to 2 or more persons in any property with or without the legal interest will be construed as made to them as tenants in common and not as joint tenants. Disposition is defined in Schedule 6 to include a conveyance or transfer of property by any instrument other than by will and devise in a will. This provision does not apply where there the disposition clearly provides that the persons are to take it as joint tenants. For instance, the words 'as joint tenants'
must be used unequivocally.
Where, however, this provision does apply - the joint tenants at law will hold the legal estate on trust for themselves as tenants in common in equity - unless subsection (2)(a),(b) apply where the tenors are executors, trustees,
The Four Unities
GENERAL PRINCIPLE: four unities of possession, interest, time, and title must be present for a JT to exist.

1. Title- Every joint tenant is entitled to every part of the co-owned land.
Requires all joint tenants to have derived their interest from the same source - e.g. one conveyance under which all joint tenants took title or a

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