Co-Ownership

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  • Created by: Hope
  • Created on: 06-05-16 10:36
How does co-ownership take place?
By means of a trust of land
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Which statute regulates trusts of land?
TOLATA - Trusts of land and Appointment of Trustees Act 1996
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What are the two types of co-ownership?
Joint tenancy and tenancy in common
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Which one of the two can only exist in equity?
Tenants in common
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Which one can exist in law or in equity?
Joint tenancy
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Which one has specific shares? What are the characteristics of these shares?
Tenants in common, the shares are "undivided" conceptual shares, not physical shares of the proeprty
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What are people entitled to in a joint tenancy? Authority?
People are regarded as being "wholly entitled to the whole"- Burton v Camden LBC
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What are the four unities that have to be present in a joint tenancy? Authority?
Unity of possession, interest, time and title. AG Securities v Vaughn
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Which one(s), if any, have to be present in a tenancy in common?
Unity of possession
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What is survivorship?
When one co-owner dies their entitlement is automatically immediately extinguished and the remaining co-owner becomes entitled to the whole of the estate
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In what type of co-ownership does survivorship operate?
Joint tenancy
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What happens when you die if you're a tenant in common?
You can leave your share in your will to whoever you want
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Which type of co-ownership does common law tend to favour? why?
Common law tends to favour joint tenancy because it simplifies land holding and registration
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Is it possible to create a tenancy in common of a legal estate directly? Provision?
No, S 1(6) LPA 1925
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Is it possible to sever the joint tenancy of the legal estate? Provision?
No, s36 (2) LPA 1925
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What is the maximum number of trustees holding the legal title? Provision?
4- s34 (2) LPA 1925
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What are the ways to establish whether there is a JT or a TiC?
decisive express declaration of interest --> equity follows the law
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Which case is the authority for using a decisive express declaration of interest
Goodman v Gallant
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Which case confirmed this?
Stack v Dowden
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Without an express declaration, what does the court do? Authority?
They presume equity follows the law, so they presume a JT, Pettit v Pettit
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What are the 3 things that can displace the presumption?
words of severance in the conveyance, unequal contributions to the purchase price, business relationship
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What kind of things can indicate words of severance in the conveyance?
Words like "shares" or "divided equally"- must be a TiC because you can't have shares in a JT
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What is the case authority for unequal contributions to the purchase price?
Bull v Bull
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How has this presumption changed recently? Authority?
In the context of a family home, there is a strong presumption of joint tenancy- Jones v Kernott
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What can displace the presumption of family home?
evidence of a contrary intention, but this is hard to prove
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What is the presumption and case authority for business relationship?
The presumption is that business owners wouldn't want survivorship to operate, Malayan Credit v Jack Chia-MPH Ltd
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What can you do if you want to change from JT to TiC? Authority?
You can sever your joint tenancy to become tenants in common. Harris v Goddard
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What are the 3 methods of severance?
Written notice, Common Law Methods, Unlawful killing
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What is the statutory provision for written notice? Case authority?
s 36 (2) LPA 1925 - Harris v Goddard
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What do you have to demonstrate in a written notice?
An intention to sever the beneficial interest immediately
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What is a case example of written notice?
Goodman v Gallant
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What are some illustrative cases of the language the courts accept?
Re Draper's Conveyance - summons and affidavit, Harris v Goddard- asking court to make order in future not ok- i.e. divorce petition
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What does s36(2) LPA say about written notice?
It has to be given to other Joint Tenants
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When will the notice be held to be 'given' to other JTs?
When it has been left at the last known address or place of business
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What happens if they don't receive it?
It doesn't matter
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Can you revoke it? Authority?
No, Kinch v Bullard
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Is posting alone enough to constitute the giving of the notice? Provision? Authority?
Yes, under s 196 (4), Re 88 Berkeley Road
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What happens if there are multiple tenants and you sever your share?
It doesn't affect the other people, your share changes to TiC and they stay JTs
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Which case do the common law methods of severance come from?
William v Hensman
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What are the common law methods?
operating on your own share, mutual agreement, course of dealings
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What are some examples of operating on your own share?
Selling it, mortgaging it, fraudulently transferring the whole property, bankruptcy
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What is a case example of selling/mortgaging your interest?
Bedson v Bedson
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What are case examples of fraudulently transferring the whole property?
First national securities v Hegerty, Ahmed v Kendrick
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What is a case example of bankruptcy?
Re Dennis
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What effect do all these have on the shares?
They only sever that persons share
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Does making a will count as acting on your own share? Authority?
No, wills are recovable and happen too late. Gould v Kemp
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What do you have to be able to show to demonstrate mutual agreement? Authority?
You have to be able to show a point in time where the parties were in agreement, Burgess v Rawnsley
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Is mutual agreement unilateral?
No, it is consensual, it affects everyone's share
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What is the case example contrasting this? How?
Nielsen-Jones v Fedden, written memorandum did not amount to severance because it didn't deal clearly enough with the questions of ownership of the property and whether severance was really intended
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What is mutual conduct?
When JTs have acted in such a way as to demonstrate that they regard themselves as being TiCs
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What do you need to show for mutual conduct? Authority?
You don't need to show that an agreement was reached, just that you acted like TCs. Burgess v Rawnsley
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What is deemed "not enough" by Sir John Pennywick in Burgess v Rawnsley?
One person offering to buy the interest and the other making a counter offer- that alone won't work
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What is the difference between negotiations and course of dealing? Authority?
In course of dealing, parties have dealt with their interests in the property on the footing that they are TCs, not JTs. Gore v Snell Carpenter
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What can mutual conduct cases often turn on, like in Davis v Smith?
You need to be able to point to actual verifiable evidence and what they might have been thinking at the time-not just speculation
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What kind of severance is mutual conduct?
Consensual, so it affects everyone's shares
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When does unlawful killing usually occur?
Domestic/family situations
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Why do we have this rule?
To stop survivorship operating and benefiting the killer
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What is the name of the rule? What does it do?
Forfeiture - it regards the killing as the severing event
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In what circumstances does forfeiture apply? Authority?
When the person was guilty of deliberate, intentional and unlawful violence or threats of violence. Re K
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What about aiding and abetting suicide? Authority?
Forfeiture applies, Dunbar v Plant
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What about in situations of killing because of long-term domestic violence? Authority?
Forfeiture applies - Re K
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What about severe mental illness? Authority?
forfeiture applies- Chadwick v Collinson
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What are the effects of severance?
JTs become TiCs, survivorship ceases to operate, shares are allocated
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What is the basic rule concerning the size of share allocated on severance? Authority?
Irrespective of original contributions to the purchase price, both parties get the same. Goodman v Gallant
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Can this rule ever change? Authority?
Yes it is subject to contrary agreement between the parties, Jones v Kernott
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Other cards in this set

Card 2

Front

Which statute regulates trusts of land?

Back

TOLATA - Trusts of land and Appointment of Trustees Act 1996

Card 3

Front

What are the two types of co-ownership?

Back

Preview of the front of card 3

Card 4

Front

Which one of the two can only exist in equity?

Back

Preview of the front of card 4

Card 5

Front

Which one can exist in law or in equity?

Back

Preview of the front of card 5
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