These notes are on the topic of co-ownership in property law. The notes contain general information, legislation and case-law on topics such as: joint tenancy, survivorship, the four unities, tenancy in common, joint tenancies in equity, severance, problems with joint tenancy, ending co-ownership.
CO-OWNERSHIP
- When more than one person owns a property
Tenancy in common, joint tenancy, coparcenary (obsolete), tenancy by entireties (obsolete)
CoParcenary
• Prior to succession act, the rules of succession governed by primogeniture – succession by
the male defendants.
- A generation with no sons – the property would go to the daughters and they would
hold it on a co-ownership basis – this was called coparcenary.
Tenancy by entireties
• Related to the fact that at common law, a husband and wife were treated as one unit.
JOINT TENANCY
- A type of co-ownership, where two or more owners of land are treated as a single owner
of land
• Legally, they are a single owner.
Qualifications:
1. Survivorship
2. Four unities
• If you don’t have a joint tenancy, you likely have a tenancy in common.
The principle of survivorship:
- When one of the co-owners die, their interest ceases, and the survivor owns the
property then themselves.
• Say there are 3 – A, B,C – A dies – the property ownership is equally owned by B and C
• If C dies, it goes to B
• If B dies, the rules of succession apply – the ownership ends, and with it there are no
rules of survivorship anymore
• Survivorship takes precedence over wills.
• So, if A and B jointly owned a property, and B dies – even if B leaves the property to C –
it goes to A
S 4 (C) of the succession act
- The estate or interest of a deceased person under a joint tenancy…
The four unities
1. Unity of possession
, - All owners are entitled to the entirety of the premises.
• Something shared by both joint tenancies and tenancies in common (they both require
unity of possession)
• Say one evicts or excludes the other, they could be liable in trespass.
• Imagine there are 3 joint tenants who own a house – they all have unity of possession.
can one stop another from entering a bedroom?
• These situations are better resolved outside of the courts.
Lahiff v hecker?
House co-owned by a number of siblings – they didn’t really get along and seemed like fairly nasty
people. The court made comments on co-ownership
- One of the siblings is not entitled to deprive another to a part of the house
But
- She was entitled to select one room, to be her bedroom (privacy?)
- The other siblings are not entitled to use the proeprty in a way that excluded the
enjoyment of another co-owner.
2. Unity of interest
- All owners have an identical interest in the land
• If one has a leasehold interest, and one has a freehold – this is not unity of interest,
therefore it is not joint tenancy.
• Lets say two have a life-estate, and a fee-simple goes to one of them upon death – this
can still be a unity of interest –
- The identical interest is for the time that they are alive.
3. Unity of Title
- Same will, deed, adverse possession conduct
- They both acquire their interest at the same time by the same means.
4. Unity of time
- The tenants take title at the same time.
TENANCY IN COMMON
Differences
• Less unified than a joint tenancy
- No survivorship of title
- No unity apart from unity of possession
• At common law,
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