Co-Ownership

Front 1

s. 1 TLATA

Back 1

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

Front 2

How does co-ownership happen?

Back 2

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)

Front 3

What is the maximum number of legal owners?

Back 3

FOUR

- s. 34 (2) Trust Act

Front 4

How are these four decided?

Back 4

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

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

Front 5

What is the only way legal title can be held?

Back 5

As joint tenants s.1(6) LPA

Front 6

What is the maximum number of equitable beneficiaries?

Back 6

There is no maximum number

Front 7

How do you tell if they are joint tenants?

Back 7

Four unities will be present

Front 8

What are the four unities?

Back 8

Possession - no segregation

Interest - same interest in land

Time - interest vests from same time

Title - interest vests from same document

Front 9

Bull v Bull

Back 9

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

Front 10

Stack v Dowden

Back 10

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

Front 11

Pink v Lawrence

Back 11

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

Front 12

What is the right of survivorship?

Back 12

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

Front 13

What is severance?

Back 13

When the joint tenancy is converted into a tenancy in common

Front 14

Goodman v Gallant

Back 14

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

Front 15

Griddle v Hooper

Back 15

There is always a right to sever

Front 16

Harris v Goddard

Back 16

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

Front 17

What are the methods of severence?

Back 17

s. 36 (2) LPA:

- Notice in writing

- Other acts or things

Front 18

Williams v Hensman

Back 18

Other acts or things:

- Act operating on own share

- Mutual agreement

-Mutual conduct

Front 19

First National Securities v Hegerty

Back 19

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

Front 20

Re Gorman

Back 20

Going bankrupt is act operating on own share

Front 21

What must the disposition comply with?

Back 21

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

Signed and in writing

Front 22

What must a notice in writing demonstrate?

Back 22

Irrevocable and immediate desire to sever

Front 23

Re Draper

Back 23

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

Front 24

Harris v Goddard

Back 24

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

Front 25

Where must a notice in writing be delivered?

Back 25

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

Front 26

Kinch v Bullard

Back 26

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

Front 27

Re 88 Berkeley Road

Back 27

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

Front 28

Does it matter if other tenants do not read it?

Back 28

No, so long as properly delivered - Kinch v Bullard

Front 29

What is mutual agreement?

Back 29

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

Front 30

Burgess v Rawnsley

Back 30

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

Front 31

Davis v Smith

Back 31

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

Front 32

Hunter v Babbage

Back 32

Agreement clearly reached. Never signed but this did not matter

Front 33

Nielsen Jones v Fedden

Back 33

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

Front 34

Gore & Snell v Carpenter

Back 34

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

Front 35

What is mutual conduct?

Back 35

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

Front 36

Gore & Snell v Carpenter

Back 36

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

Front 37

Davis v Smith

Back 37

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

Front 38

Greenfield v Greenfield

Back 38

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

Front 39

s. 6 (1) TLATA

Back 39

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

Front 40

s. 11(1)(a) TLATA

Back 40

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

Front 41

What is the purpose of the trust?

Back 41

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?

Front 42

What can parties do to settle disputes?

Back 42

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

Front 43

s. 15 TLATA

Back 43

Sets out guidelines for court:

- Intention of settlor

- Welfare of minors

- Interests of beneficiaries

- Purpose for which trust is held

- Interests of secured creditors

Front 44

Re Buchanan Wollaston

Back 44

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

Front 45

Jones v Challenger

Back 45

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

Front 46

Re Inns

Back 46

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

Front 47

Bank Ireland v Bell

Back 47

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

Front 48

First National Bank v Archanpong

Back 48

Creditor interest prevailed interests of disabled son

Front 49

Fred Perry v Genis

Back 49

Children's education was disrupted but creditor interest prevailed.

Front 50

If court orders sale, this will be overreaching

Back 50

s.2(1) LPA

Front 51

Ali v Hussein

Back 51

Court can choose to postpone sale

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

Front 52

Mortgage Corporation v Shire

Back 52

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

Front 53

What happens in bankruptcy?

Back 53

- Bankruptcy severs joint tenancy (Re Gorman)

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

Front 54

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

Back 54

Apply to court under s.14 TLATA for sale

Front 55

What will court have regard to during 1st year?

Back 55

s.335(a) Insolvency Act:

- Interests of creditors

- Conduct of bankrupt

- Needs of children

- Needs of other co-owners

- Any circumstances except bankrupts

Front 56

What happens after 1st year?

Back 56

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

Front 57

Re Citro

Back 57

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

Front 58

Re Bremnar

Back 58

Terminal cancer. Postponed.

Front 59

Re Raval

Back 59

Mental illness. Postponed.

Front 60

Re Haighait

Back 60

Severely disabled. Postponed.

Front 61

Ford v Alexander

Back 61

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

Front 62

Blanco v Malcom

Back 62

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

Front 63

Donogoe v Ingram

Back 63

Again, no infringement on facts