Co-Ownership

Front 1

Explain the distinction between a joint tenancy and a tenancy in common

Back 1

Under a joint tenancy, all owners are entitled to the entire property; none has any ‘share’.it is the right of survivorship that distinguishes them (see Dunbar v Plant [1998] Ch 412). This means that on the death of a joint tenant his or her interest in the land passes to the other joint tenants and this process continues until there is one surviving joint tenant, who then holds the land as sole owner – a joint tenancy cannot pass under a will or intestacy. By contrast, on the death of a tenant in common his ‘undivided share’ passes under his will or intestacy; survivorship does not apply to tenancy in common.

Front 2

Describe the various modes of severance

Back 2

1. Alienation inter vivos (e.g. where X and Y are joint tenants and Y sells his interest to P) will sever Y’s interest by destroying unity of title. Where a joint tenant becomes bankrupt and his property becomes compulsorily vested in his trustee in bankruptcy, this will also sever the joint tenancy.
2. Acquisition of a different interest in the land (e.g. X and Y are joint tenants for lifeand Y acquires the fee simple remainder); again, this attacks the four unities.
3. Mutual agreement (see Burgess v Rawnsley). An agreement to make mutual wills, to sever, or to deal with the land in a manner which implies severance, will all form severance by mutual agreement. Note that although a valid contract concerning land requires writing under the Law of Property (Miscellaneous Provisions) Act 1989, Burgess v Rawnsley concerns the intention of the parties and not the issue of formalities, and so severance can occur even though the agreement which causes the severance is unenforceable in its own right due to lack

Front 3

How do you recognise the situations in which a resulting trust or constructive trust may arise?

Back 3

A RESULTING TRUST arises (among other cases) when a person contributes directly towards the price of the land but does not have his or her name on the legal title (known as ‘purchase in the name of another’). In such a case there will be a presumption that the contributor has a beneficial interest in the la
A CONSTRUCTIVE TRUST arises (again, amongst other cases) when a person has contributed, directly or indirectly, to the price or value of the land (home) and there was a ‘common intention’ or express agreement between the parties that he or she should have a share in its ownership uu or where such common intention can be proved, in addition to an ‘excuse’ or lie from the legal owner as to why the land was not being conveyed into joint names (see Eves v Eves, Grant v Edwards)nd behind a resulting trust.

Front 4

Explain the significance of the LPA and TLATA reforms relating to co-ownership.

Back 4

The scheme of the 1925 legislation was to impose a statutory trust for sale in all cases of co-ownership, but although this was intended to simplify conveyancing, it gave rise to a number of legal problems not least because it was often inappropriate to apply to co-ownership principles (like the doctrine of conversion, now abolished) associated with express trusts for sale. However, since the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) came into force, trusts for sale have been converted into trusts of land. Co-ownership now takes effect behind a trust of land. While many of the 1925 Law of Property Act provisions governing co-ownership remain good law, the TLATA has introduced important reforms in this field.

Front 5

Questions to ask to determine if joint or in common?

Back 5

1) Are four unities presnt - if so- NO joint tency-
title interests from same doc
time interests of all same time
interest-all have same interest
possession-same right of pos
2) Are there any words of severance in the grant indicating that the tenants were to take a tenants in common (e.g. X and Y in equal shares)?
3)Is the situation where equity presumes a tenancy in common?

Front 6

What happens when we chip in unequal amounts for land?

Back 6

Presumed to be tenants in common thru a resulting trust. HOWEVERthe equitable presumption cannot be invoked where there is an express declaration that the parties are to hold as beneficial joint tenants.
IN THIS CASE NO resulting trust.

Front 7

Give a case example of a chip in situation

Back 7

Goodman v Gallant
Co-Ownership. Conveyance to 2 or more. Declaration of equitable interests in writing will be enforced (no later constructive trust trickery)

Front 8

What happens when sole (A) buys but B says partly theres because contributed money and a resulting trust.

Back 8

Was it gift? Was it a loan? Was it intended to to give B a beneficial interest in the land.
It is only where a beneficial interest was intended that one will be created in equity, but often of course the parties will dispute this vital issue.

Front 9

How have rules related to contributions from others for purchase of land been rewritten?

Back 9

H of L in Stack v Dowden has recently rewritten the rules on how a constructive trust is to be established via common intention and cast aside the narrowness of the previous leading case of Lloyds Bank v Rosset. Under Stack there are now 3 ways of proving a common intention to exist:
1. Where the defendant has PROMISED that the claimant will have an interest (as held in Rosset)
2. Where the claimant has made DIRECT PAYMENTS to the purchase of the property (as held in Rosset)
3. Where one can be IMPLIED FROM ALL THE CIRCUMSTANCES

Front 10

Before stack we had Grant v Edwards. What were conditions from that case?

Back 10

1. there must be evidence of a common intention that the claimant should have a beneficial interest
2. the claimant must have acted to his detriment on the basis of that common intention and
3. there must be equitable fraud on the part of the legal owner, by him acting against his conscience, disclaiming his prior agreement and denying the claimant’s rights

Front 11

In Grant v Edwards how did the rules appply?

Back 11

In Grant v Edwards the common intention was demonstrated by the defendant’s statement that the plaintiff’s name was not going on the title because it would prejudice her position in matrimonial proceedings pending between her and her husband, and moreover she had acted to her detriment by applying her earnings to the household expenses, by housekeeping and bringing up the children, thus making substantial indirect contributions to the mortgage repayments.

Front 12

Re co- ownership what is principle Lloyds Bank v Rosset?

Back 12

The House of Lords stressed that the finding of an agreement or arrangement that the property is to be shared beneficially must be based on evidence of express discussions between the parties. In the absence of such evidence the courts would only infer a common intention where a person (who is not the legal owner) has made direct contributions to the purchase price, usually known as a resulting trust.

Front 13

Re co- ownership what is principle Oxley v Hiscock?

Back 13

Court of Appeal considered that, where two persons contributed to the purchase of land conveyed into the name of one of them and where there was no agreement about the quantification of their respective shares, the court was entitled to take into account the whole course of conduct between the parties in determining what would be a fair share.