Co-ownership: Overview

[Flash Card 1 of 5]

Joint tenants (JT)

• co-owners not treated as having separate shares / right of survivorship applies / cannot make gift land to 3rd party in will / sale: share proceeds equally

Tenants in common (TIC)

• co-owners own distinct shares (equal or unequal) / right of survivorship not apply / land passes under will or intestacy / sale: share proceeds proportionate to ownership share

Co-ownership since 1 January 1926

• LPA 1925 s.1(6): legal estate cannot be created in undivided shares (TIC) / if JTs own legal estate in land trust implied s.36(1) / no severance JT of legal estate to convert TIC s.36(2) / maximum 4 trustees as JTs legal estate s.34(2)
• Bull v Bull TICs equitable only
• severance: if parties originally JTs may convert to TICs in equity

Title

• registered: legal co-owners registered proprietors / equitable TICs should place restriction on proprietorship register / equitable JTs no restriction

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Co-ownership: Overview

[Flash Card 2 of 5]

co-owners hold equitable interests as JTs or TICs?

First test: are all four unities present?

• unity of interest: co-owners must have same interest but can be different size / unity of title: co-owners must receive interest under same document / unity of time: co-owner's interest must vest at same time / unity of possession: co-owners must each be entitled to possession of whole land & cannot exclude other co-owners
• if all 4 unities not present: is there unity of possession? / yes: TICs / no: not co-ownership / if all 4 unities present: either equitable JTs or TICs / 2nd test applied

Second test: express declaration in transfer?

• wording declaration transferring land to co-owners / express declaration conclusive Goodman v Gallant / if no express declaration: 3rd test applied

Third test: words of severance in transfer?

• words of severance: indicate co-owners intend own separate & distinct shares / equally, unequal, among if words of severance: co-owners equitable interest TICs / if no words severance 4th test applied

Fourth test: does equity presume a tenancy in common?

• TICs presumed: partnership property / lenders / unequal contributions
• if all 4 unities present / no express declaration or words of severance / & no equitable presumptions: co-owners equitable JTs

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Co-ownership: Overview

[Flash Card 3 of 5]

Severance of the joint tenancy in equity

• severance: co-owners / change equitable interest JT - TIC
• by notice: s.36(2) LPA 1925 / written / intention: immediately effective Harris v Goddard / served: all JTs
• s.196 LPA 1925: sufficient service / left last known address of JTs (requires proof physical service) s.196(3) / registered post & recorded delivery & not retuned undelivered s.196(4)
• possible withdraw notice prior to other co-owners receipt Kinch v Bullard / sufficient: serving co-owner signed behalf of recipient Re 88 Berkeley Road
• common law / Williams v Hensman: 1 severing act by JT operating on his share / 2 mutual agreement / 3 course of dealing by JTs showing intent TICs
• act/ailenation: if unity of interest, title or time ceases / no longer JT / give or sell to 3rd party or mortgage / bankruptcy involuntary alienation (co-owner's equitable interest vest in bankruptcy trustee) / actual alienation required - unilateral declaration insufficient Nielson-Jones v Fedden
• gift of equitable interest to 3rd party in will insufficient: before gift takes effect / right of survivorship applies
• mutual agreement: if co-owners expressly agree to sever JT or deal with land way which severs / agreement need not be binding in equity or if parties agree to deal with land in way which would have effect of severing Burgess v Rawnsley
• forfeiture: if co-owner kills other co-owner / severs equitable JT Re K

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Co-ownership: Overview

[Flash Card 4 of 5]

Sale by co-owners

• sale by 2 or more co-owners: no issue/ P pays purchase price to both legal owners / buy whole legal estate & equitable interests under implied trust overreached ss.2 & 27 LPA 1925
• sale by sole surviving owner issues: A & B originally bought land as beneficial JTs / B dies & A wishes to sell to P / problem: P cannot be sure JT not severed in equity before B's death
• if not severed: A & B continued to hold equitable as JTs / on B's death legal estate & equitable vested in A by survivorship / A can sell alone
• if severed: legal estate held by A & B as JTs / on B's death legal estate would vest in A by survivorship / B's equitable interest as TIC & passes under will or intestacy
• if B's equitable interest not passed to A: A holding land on trust for himself & Bs under B's will or intestacy / P needs to overreach & insist A appoints 2nd trustee
• if registered land: A can prove ownership by copies of entries on register of title / if no restriction P entitled to assume A & B held as equitable JTs before B's death / A can show P copy of B's death certificate & P can assume A taken whole legal estate & equitable interest by survivorship

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Co-ownership: Overview

[Flash Card 5 of 5]

Reform

• issue: if co-owners initially buy as beneficial JTs / want hold as TICs (relationship breakdown) / must sever effectively or survivorship applies /solution: if TICs from outset: parties could leave shares to each other or 3rd party / problem: no automatic survivorship if want to pass to other
• difficulties: checking whether severance has occurred for personal representatives / if co-owners only TICs would always pass under terms of will or intestacy
• issue: if purchasers make unequal contributions towards purchase price / but declare beneficial JTs & later JT severed / co-owners TICs in equal shares / solution: if co-owners had to hold as beneficial TICs in proportion to contributions Law Commission concerns severance / by acts: uncertain what sufficient / by mutual agreement: unclear if oral agreement is sufficient / by mutual conduct: negotiations may be sufficient but unclear
• LC proposals: abolish common law severance (notice only under s.36(2) LPA 1925) / severance by making specific & explicit gift in will Working Paper on Trusts of Land (1985)
• advantages: decrease litigation (severance disputes) / severance by will avoids survivorship errors & help acrimonious relationship breakdowns
• disadvantages: increase litigation (bankruptcy trustee require notice before property vests) / lose flexibility informal severance methods / severance by will lacks security of notice

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