Co-ownership 1

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  • Created by: Nikki
  • Created on: 17-04-16 22:24

Concurrent and consecutive interests

  • if there are two or more beneficiaries their interests can either be concurrent (simultaenous) or successive (consecutive)
  • any number of successive interests and any event can be boundary between them
  • common arangment is for A for life then for B (remainderman)
  • principa restriction on creation of consecutive interests is a rule against peptuities
  • concurrent interests can be any number 
    • shared single interest in the particular piece of property --> joint tenants
    • tenants in common --> 'undivided shares' --> separate interests (shares) but in same property (undivided)
  • if property given tohold on trust to A and B then A dies -->
    • tenants in common --> A has separate interest which now devolves in usual way in accordance with is will
    • joint tenants --> now held on trust for B alone --> previously shared a single interest so upon A's death B is simply elft as sole owner of that interest --> right of survivorship
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Should joint tenancy be abolished


  • suviviorhsip is problem
  • if joint tenant dies unaware of his status as such or of its implications --> probably assumes his irght iwll pass under will but suviviorhsip confounds his assumption and frustrates his wishes 


  • in certain circ survivorship is beneficent as reflecting way inw hich a deceased co-owner, dying intestate, would have wished to leave his right or in which, regardless of his wishes, he ought to have left it
  • there certain cir are, circularly, those where co-owner's relationship is such that one would ahve left his righ tot other in this way

Counter argument fails

  • law has other rules specifically deisged for these purposes and these will apply where concurrent owner dies a tneant in common --> operate in a subtler way than suriviorship 
  • survivorship focuses too much on relationship at start of tenancy regardless of supervening changes
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Four unities

To capture idea that joint tenancy is a shared single interest --> four unities

  • possession
  • time
  • title 
  • interest

Idea of the three last unities as essential has come under pressure 

Furthermore right can exhibit the unities and still be a tenancy in common 

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Separation at the outset

Intention to hold property as tenants in common can be discovered form the language in which the rights are created --> words of severance --> anythign to qualify 'for A and B' e.g. 'in equal shares'

Intention can alternatively be surmised from surrounding circ
- if of business, inferred they do not intend to share single interest
- such interest also found if A and B buy a house together because wanted to get on property ladder and could not afford to do so separately

Law's readiness to find words of severance suggests it has a preference for tenancy in common --> probably a reflection of problems with joint tenancy 

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Subsequent severance

Can occur in number of ways:
- by written notice from one joint tenant to other(s)
- by agreement between joint tenants concerned, or a 'course of dealing' showing that they in fact regard the joint tenancy as having been severed
- by 'an act operating on' one joint tenant's share, such as where A hiterto joint tenant with B, transfers his right to C

Law seems ready to find severance
- will find severance by written notice despite piece of writing in quesiton saying nothing about severance --> so long as writer's desire to sever can be discovered by reflecting on its content
- by course of dealing if one joint tenant merely tells the other of a desire on his part that is inconsistent with continued joint tenancy --> mere request to negotiate for a split would suffice

Cases also show contrary tendency presenting much narrower view of severance
- idea that unilateral oral notice amounts to a course of dealing has been disapproved
- some decisions have rejected discerning agreement to sever in unfinished neogitations twards a split 
- intention must be for immediate severance
- intention to sever cannot be read into an app for a court order to reallocate a couple's property in the context of their divorce

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Creation of trust rights in land

  • Express trusts --> settlor may either transfer property in question to trustee on this basis or keep it and declare himself trustee of it
  • Constructive --> by operation of the law
  • complication of tenancy in common --> suggestion that a tenancy in common cannot arise under constructive trust --> but this must be wrong
  • formalities
    • inter vivos express trust of land needs to be created in writing
    • no formality required in order for there to be a constructive or resulting trust 
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  • People in whom legal right is vested --> owe oblgiations to beneficiaries
  • Can transfer to one trustee but normally transferred to at least two, up to a max of four
  • multiple trustees said to be legal joint tenants
  • when 2+ people hold legal title to land as trustees they cannot do so as tenants in common --> joint tenancy
    • incapable of severance and of alienation
    • but can die or release (resign) our position
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Statutory trusts

  • if I purport to transfer land to more than one person, the law interjects a trust to effect as if I had made an express trust
  • rule foun din LPA 1925
  • trustees of purported transfer to concurren towners will be purported transferees themselves --> they will hold the property on trust for themselves as beneficiaries 
  • beenficial interests can exist under joint tenancy or a tenancy in common in usual way 
  • point of statutory trusts
    • preserves land's future marketability 
    • putative purchaser will need to deal only with trustees
    • advantage is invisible whilst trustees and beneficiaries remain same people 
    • when trustees adn beneficiaries are non-identical groups in this way, there is also a disadvantage
  • formalities --> no formality requirements
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Overreaching (1)

When trustees dispose of property they hold on trust tey beneficial rights which owuld otherwise remain with property instead detach themselves form it, sot aht disponee cannot be affected by them --> then re-attach theselves to replacement property 

Value in land marketability 


  • trustees ahve a number of duties
    • aide by terms of trust agreement, act only in B's interests; consult B before making disposition; exercise appropriate care and skill; 2 trustee rule
  • acting in breach will put trustee in breach of trust --> B entitled to sue for injunction or damages

Restrictions --> entry on register recording duty --> can be entered only if in nature of duty that obedience can be easily verified by Registry staf

Where there is a restriction and not obeyed --> dispoition is blocked --> no question of overreaching --> property will remain with trustees and beneficial rights with B

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Overreaching (2)

Where there is no restriction

  • where duty hasn't been recorded by restriction regardless of whether it could have been or not
  • if duty obeyed, lack of restriction irrelevant --> disposition and overreaching occur
  • pre-2002 law if duty breached
    • disposition took effect but sometimes without overreaching 
    • HL in Williams & Glyn's Bank v Boland --> overreaching blocked by a breach of the 2 trustee rule --> unclear whether other improprieties blocked overreaching in this way
  • 2002 onwards
    • s26 LRA 2002 --> duty unprotected by a restriction is tob e treated vis-a-vis disponee as if it never existed --> disposition and overreaching occur
    • possible exception --> breach of 2 trsutee rule --> possible taht pre-2002 rule continues to apply
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Overreaching (3)

  • Wording of s26 gives little or no support to view taht it does not apply to breaches of two trustee rule
  • ought such breaches reamin outside s26?
    • arguably so
    • breaches of 2 trustee rule are different
    • not only does this rule apply to nearly every disposition of trust land, but a breach of it will also be obvious to disponee
    • disponee, aware of beneficial interest itself, can also anticipate the risk fo being bound by it, and act to avert this risk --> additional protection of s26 unnecessary 
    • also inappropriate --> if disponee can antiicpate the impropriety in this way it is right to expect him to play his part in averting it, for the sake of the beneficiary whom the duty exists to protect
  • why do we need s26 to ensure that disponee can anticipate difficulty over an impropriety?
    • under pre-2002 rule even if impropriety meant beneficial interest not overreached, it did not actuall bind disponee unless B in actual and apparent occupation --> surely this alerted siponee of potential prob?
    • no --> disponee could discover B's occupation and so his interest but this did not alert disponee tor isk of an impropriety and so risk of that interest actually binding him
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Binding disponees

Unovereached beneficial rights as overriding interests --> only if beneficiary in actual and apparent occupatio of trust land when trustees dispose of it

Consent principle --> if right is capable of binding a disponee it still might not if the holder of that right has consented to it not doing so --> postpone by consent --> Bristol and West Building Soc v Henning
- implied consent where disponor and B are closely linked e..g constructive trust of home cases
- express consent is routinely sought

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TOLATA provisions

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