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63 Cards in this Set

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s. 1 TLATA

Whenever land is co-owned, it is automatically held on trust

How does co-ownership happen?

Express - s.53(1)(b) - evidenced in writing and signed by all co-owners.




Implied - co-owners all contribute to purchase price (Lloyds Bank v Rossett)

What is the maximum number of legal owners?

FOUR




- s. 34 (2) Trust Act

How are these four decided?

- Have to be sui juris - s. 1(6) LPA




- First four named on deed s.34(2) TA

What is the only way legal title can be held?

As joint tenants s.1(6) LPA

What is the maximum number of equitable beneficiaries?

There is no maximum number

How do you tell if they are joint tenants?

Four unities will be present

What are the four unities?

Possession - no segregation


Interest - same interest in land


Time - interest vests from same time


Title - interest vests from same document

Bull v Bull

Might be a tenancy in common if they have contributed unequal amounts to purchase price in a commercial property

Stack v Dowden

Confirms that contributing unequal amounts does not make it a tenancy in common in domestic situations

Pink v Lawrence

If there are express words in the deed e.g. 'to be held as joint tenants', this prevails over any assumption

What is the right of survivorship?

Applies to joint tenants - if one dies, their interest is subsumed by other tenants

What is severance?

When the joint tenancy is converted into a tenancy in common

Goodman v Gallant

When severance occurs, will get equal equitable shares as TIC despite initial unequal contributions

Griddle v Hooper

There is always a right to sever

Harris v Goddard

Right of survivorship no longer applies - can leave share to whomever

What are the methods of severence?

s. 36 (2) LPA:




- Notice in writing


- Other acts or things

Williams v Hensman

Other acts or things:




- Act operating on own share


- Mutual agreement


-Mutual conduct

First National Securities v Hegerty

Mortgaging or charging an interest will be act operating on own share

Re Gorman

Going bankrupt is act operating on own share

What must the disposition comply with?

s.53(1)(c) - It is the disposition of an equitable interest :




Signed and in writing

What must a notice in writing demonstrate?

Irrevocable and immediate desire to sever

Re Draper

Divorce papers showed immediate intention to sell the house = severance via writing

Harris v Goddard

Divorce papers merely discussed prospect of house being sold = no severance, not immediate enough

Where must a notice in writing be delivered?

s. 196(3) LPA - to the last known abode of co-owners.

Kinch v Bullard

If sent via ordinary post, will be deemed delivered upon arrival

Re 88 Berkeley Road

If sent via recorded post, will be deemed delivered upon posting

Does it matter if other tenants do not read it?

No, so long as properly delivered - Kinch v Bullard

What is mutual agreement?

Hard to define - but a moment in time where all the parties in agreement about the severance

Burgess v Rawnsley

Quantifiable figure was reached. Full agreement to sell was reached by all parties.

Davis v Smith

Both parties sought legal advice with clear intention to divide up property

Hunter v Babbage

Agreement clearly reached. Never signed but this did not matter

Nielsen Jones v Fedden

There was no agreement on a final price. They had settled small sums but not full amount. No agreement.

Gore & Snell v Carpenter

There were negotiations for years. Several drafts were made but no final or conclusive agreement.

What is mutual conduct?

More of a long-term assumption that they are tenants in common

Gore & Snell v Carpenter

Lengthy negotiations were still not enough to show severance via mutual conduct

Davis v Smith

There were lengthy negotiations with lawyers - this WAS enough to show severance via mutual conduct.

Greenfield v Greenfield

It was not enough to simply divide possessions/leave the property. Has to be a legal suggestion of division

s. 6 (1) TLATA

Legal title owners are trustees and therefore they have the power of absolute owner i.e power of sale

s. 11(1)(a) TLATA

But they have a duty to consult with beneficiaries who are full age




AND




Give effect to the majority in value wishes so long as they do not conflict with the purpose of the trust

What is the purpose of the trust?

e.g If the trust was bought to be a family home or to further a career - is this purpose ongoing or has it ended?

What can parties do to settle disputes?

Apply to court under s.14 TLATA for order of sale.

s. 15 TLATA

Sets out guidelines for court:


- Intention of settlor


- Welfare of minors


- Interests of beneficiaries


- Purpose for which trust is held


- Interests of secured creditors

Re Buchanan Wollaston

Land purchased to protect sea-view. Purpose ongoing. Could not be sold.

Jones v Challenger

Property bought as a matrimonial home. This purpose ended. Property was sold.

Re Inns

Property bought as a family home. This purpose was ongoing. Property was not sold.

Bank Ireland v Bell

The purpose was a family home and this was continuing BUT the creditor interest prevailed. Taken very seriously.

First National Bank v Archanpong

Creditor interest prevailed interests of disabled son

Fred Perry v Genis

Children's education was disrupted but creditor interest prevailed.

If court orders sale, this will be overreaching

s.2(1) LPA

Ali v Hussein

Court can choose to postpone sale




- Here postponed to allow co-owners to buy out the person who wanted to leave.

Mortgage Corporation v Shire

Be wary of pre-TLATA case law as it was in favour of sale.

What happens in bankruptcy?

- Bankruptcy severs joint tenancy (Re Gorman)


- The interest vests in Trustee in Bankruptcy who will want to sell property to realise assets

What will trustee in bankruptcy have to do if there is a dispute?

Apply to court under s.14 TLATA for sale

What will court have regard to during 1st year?

s.335(a) Insolvency Act:




- Interests of creditors


- Conduct of bankrupt


- Needs of children


- Needs of other co-owners


- Any circumstances except bankrupts

What happens after 1st year?

The interests of the creditors will prevail unless there are 'exceptional circumstances'

Re Citro

Interrupting children's schooling was not enough to be an exceptional circumstance.

Re Bremnar

Terminal cancer. Postponed.

Re Raval

Mental illness. Postponed.

Re Haighait

Severely disabled. Postponed.

Ford v Alexander

s.335(A) IA is compatible with human rights

Blanco v Malcom

There may be some instances where sale infringes Article 6 HR and courts did need to be more 'sympathetic' - but was not found on facts here

Donogoe v Ingram

Again, no infringement on facts