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Land Law PowerPoint 5 - Co-Ownership Part 1
Land Law PowerPoint 5 - Co-Ownership Part 1
Part 1
1
AIMS
To introduce the fundamental concepts and principles
relating to:
the different forms of co-ownership at law and in
equity
the use of trusts within co-ownership of land
the rights, powers and duties of co-owners of land
2
Co-ownership: Creation
Express : Implied:
Property Conveyed to 2 or More By operation of Law
IE Legal Estate : H&W IE Legal Estate: H
Equitable Estate: H & W Equitable Estate : H & W
Co-ownership: Types
Title – all JTs must have acquired their interest by the same
conveyance 5
Co-ownership: Types
Joint Tenancy = Joint Owners hold P on Trust for themselves & other Joint Tenants
(Statutory Trust)
MAX 4
s 34(2) LPA 1925- Max of 4 tenants + Statutory Trust for others
6
Applied & Approved in Stack v Dowden
Trusts of Land
Must look at the:
7
Legal Estate
Maximum of 4 may hold
if conveyed to more than 4 – first 4 named
A B C D
9
Legal Estate
C dies: right of survivorship
A B D
10
Scenario Question for Quick Reflection
Legal Owners: ANZF= Joint Tenants
In 2007 five friends, Alf, Nero, Zia, Flo, and Hadiya who was about to celebrate her 18th birthday in 6 months, bought
a holiday cottage in Norfolk with the aim that they could all use it at various times of the year for short breaks and
holidays. They all contributed equal amounts and the transfer was to all of them “as joint tenants”. Title was
registered at The Land Registry.
In 2008 Flo moved abroad. She wrote to Alf, Nero, Zia and Hadiya and asked if they thought it would be a good idea
to sell the property and, if they thought it was, whether they could send her share of the money to her new address.
They heard nothing more from Flo until they were informed that she died in 2009. In 2010 Nero got married and not
long afterwards he sold his share to Zia.
In 2012 Hadiya needed to raise money for her business and she offered her share to Alf and Zia. Alf and Zia accepted
the offer but before they could pay Hadiya she died of a heart attack, leaving all her property to her brother.
In 2013 Alf mortgaged his share to Big Bank PLC. He has now fallen behind with the mortgage repayments and both
he and Big Bank PLC would like to sell the holiday cottage. Zia objects to the sale.
(a) Trace the devolution of the legal estate and equitable interests in the holiday cottage.
(b) Explain whether Alf and Big Bank PLC can insist on a sale of the holiday cottage. 11
Beneficial Interests
Beneficial joint tenancy
Legal Owners:
ABCD= Joint Tenants
A B C D
Beneficial Title=
ABCDEF
A B C D E F
12
Beneficial Interests
Beneficial joint tenancy: C dies
Legal Owners: ABD= Joint
Tenants
A B D
Equitable Title:
Depend on JT v TIC
EQUITABLE JT
JT – Right of survivorship
EQUITABLE TIC A B D E F
TIC- Notional share
Can be given…
13
Doctrine of commorientes
NTK
14
Tenancy in Common
EXISTS ONLY IN EQUITY v Legal JOINT TENANCY
15
Beneficial Interests
Legal Owners: ABCD=
Tenancy in common:
Joint Tenants
(ie @ LAW)
EQUITABLE TIC
(ie In equity)
A B C D
ABCDEF= Undivided
shares (notional shares)
A B C D E F
16
Beneficial Interests
Tenancy in common: C dies
A B D
A B X D E F
X takes beneficially under C’s will or by the
rules of intestacy 17
Beneficial Interests
Tenancy in common: C sells his share to X
A B C D
A B X D E F
acquires ET
only
Payne v Webb: “in Equal Shares” Or NEW DECLARATION form after Purchase
Lewen v Dodd: “Equally”
Heath v Heath: “share and share alike”
Peat v Chapman: “to be divided
between“ 19
Effect of Express Declaration of TIC
Goodman v Gallant
Express Declaration: CONCLUSIVE(except if set aside for fraud or undue influence)
NOTE: Above presumed Except when Unfair & Inappropriate & not intended by
the parties Then TIC despite all requirements of JT
At Severance Tenant Occupying Smaller Area Claimed order for sale of lease + equal share of proceeds
“such cases are not necessarily limited to purchasers who contribute unequally, to Co-Mortgagees and to Business
Partners. There are other circumstances in which Equity may infer that the beneficial interest is intended
to be held by the grantees as Tenants in Common. One such case is where the grantees hold premises for their
several (ie separate) individual business purposes” 24
Lord Brightman
Severance of beneficial joint tenancy
Survivorship can be useful …
unmarried couples
… but often seen as unfair
Possible to turn a JT into a TiC
Not the legal estate
LPA 1925 s 36(2)
25
Severance of beneficial joint tenancy
Must sever inter vivos
not by will: Gould v Kemp (1834) 2 My &
Kemp 304
Legal Estate
(JT) A B C D
Beneficial
Interest A B D E F C
5/6th-JT 1/6th-TIC
27
Methods of Severance of beneficial joint tenancy
29
1. Mutual Agreement
BUT
31
Methods of Severance
4. Forfeiture - Unlawful Killing
Re Crippen [1911] P 108
Forfeiture Act 1982
5. Merger of interest
6. Operation of Law
Bankruptcy
Divorce (not simply a divorce petition though)
Inheritance
Unintended methods of severance of the beneficial joint
tenancy
See also Henderson v Wilcox [2015] EWHC 3469 (Ch) where the
mentally ill perpetrator of the murder of an equitable joint tenant
could not benefit from her death; severance of the murderer’s
equitable joint tenancy automatically occurred (though this did not
preclude the killer from benefiting under a discretionary trust
should the trustees decide to exercise their discretion in his favour)
Severance by Written Notice
Re Drapers Conveyance
[1969] 1 Ch 486
H & W buy pty as joint tenants Severance effected by s17
application & affidavit
W divorce: decree nisi
(court order stating date on which marriage will end unless good
reason not to grant divorce is produced)
i.e. in lifetime of H
S17 MWPA(Married Women`s Property Act) H’s estate entitled to half share
application for order sale property as tenants in common
36
Notice intended to take immediate effect
Held: Neuberger
JT was severed
On facts service good – even if addressee did not actually receive it
No requirement for 196(3): recorded delivery alternative in s196(4)
Cannot change mind once notice ‘given’ i.e. delivered to premises
When the notice has not been received the addressee (but not the sender) can
claim severance
Although may be possible to change mind and withdraw while still in post i.e.
before delivery, if communicate change of mind but this is ‘a tentative view’
LPA 1925 s196(4)
Registered post
Recorded or special delivery
Provided that not returned as undelivered
Re 88 Berkeley Road, London, NW9 [1971] Ch 648
it
WX Investments Ltd. v. Begg [2002] EWHC 925 (Ch)
Re 88 Berkley Rd
[1971] Ch 648
E & G JTs at No 88
G’s solicitor sent E recorded
delivery notice to sever
E out, so G signed for receipt of
letter
G died
E said not seen letter
Held: severed
43
Written Notice: e-mail
When is notice by e-mail “left at” the
property for the purposes of s196(3)?
When it is on the screen (in writing)?
When it is printed out?
Laptop but not at the last known address?
Questions
In 2015 Flo moved abroad. She wrote to Alf, Nero, Zia and Hadiya and asked if they thought it would be a
good idea to sell the property and, if they thought it was, whether they could send her share of the money
to her new address. They heard nothing more from Flo until they were informed that she died in 2016. In
2017 Nero got married and not long afterwards he sold his share to Zia.
In 2019 Hadiya needed to raise money for her business and she offered her share to Alf and Zia. Alf and
Zia accepted the offer but before they could pay Hadiya she died of a heart attack, leaving all her property
to her brother.
In 2020 Alf mortgaged his share to Big Bank PLC. He has now fallen behind with the mortgage repayments
and both he and Big Bank PLC would like to sell the holiday cottage. Zia objects to the sale.
(a) Trace the devolution of the legal estate and equitable interests in the holiday cottage.
(b) Explain whether Alf and Big Bank PLC can insist on a sale of the holiday cottage. (next week)