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Summary of 7 pages for the course Property Law at UoW (co-ownership)
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Co-Ownership 1What is co-ownership?
A means of co-owning property.
Namely, simultaneously enjoying rights in the co-owned property.
This enables partners, friends and family to share rights to land.
So how can land be co-owned?
There are two forms of co-ownership recognized by English law:
Joint tenancy
Tenancy in Common
Neither of which have anything to do with a tenancy in a sense of leases, landlords or tenants.
Two forms of co-ownership:
Joint tenancy:
Each co-owner owns the entirety of the land.
There is no ‘share’ – even if different sums were invested.
When one co- tenant dies, the property passes to the remaining co-owners (survivorship – more on this later).
“[E]ach joint tenant holds the whole and holds nothing, that is, he holds the whole jointly and nothing separately.”
(Coke Upon Littleton, 19th edn (London: Hargrave and Butler, 1832))
Tenancy in Common:
In contrast, tenancy in common allows for shares of interest in the land and therefore the co-owners can own 50% share
of the property each.
The 50% share will be distinctly theirs and they can do with it as they please – during their lifetime and pass it on
through a will.
Before we can really understand the two distinct forms of co-ownership – we need a little mention of equity and trusts.
Some co-ownership can take effect in law, some need equity, other times it will be mixed of both.
LAW: JOINT TENANCY ONLY
EQUITY: JOINT TENANCY OR TENANCY IN COMMON
Co-ownership – it’s all about relationships and how we can reflect ownership within these relationships….
And here comes in the law on co-ownership to help Alison and Patrick co-own a property together…. Protecting them
and their interests.
Alison and Patrick then have to decide whether they want to hold the property as joint tenants or tenancy in common?
Let’s consider joint tenancy first.
For a joint tenancy to arise the ”four unities” must be present:
1. “Unity of possession” – each joint tenant is entitled to the physical possession of the whole of the land.
i.e – Alison cannot exclude Patrick from entering the co-owned land (Wiseman v Simpson (1988))
2. “Unity of Interest” - each joint tenant has the same interest, as regards its extent, nature and duration.
i.e – If Alison and Patrick purchase a freehold, they will both hold the freehold.
3. “Unity of title” – each co-owner must derive their title from the same conveyancing documents.
, Antoniades v Villiers – this is a question of substance, two separate docs may be signed, but in substance there is one
conveyance.
4. “Unity of time” – the interest must be acquired at the same time.
i. e – Let’s imagine Alison already owns the house, she wants to grant Patrick an equal share, they cannot be joint
tenants as there is no unity of time.
If any of the units are missing, there can be NO joint tenancy.
However, just because we ticked all the boxes,
it does not necessarily mean that Alison and Patrick would have joint tenancy.
One question which may be worth asking, if something happens to either A or P, what happens to their interests?
Survivorship
Survivorships – which only applies to joint tenancy – means that on death of one of the joint tenants, the title simply
remains with the remaining co-owners.
Let’s imagine, poor Patrick stepped off the curb without checking for oncoming vehicles – unfortunately, he didn’t make
it. In his will he expressly stated that he would like to leave the house to his mother. Alison is not a big fan, and couldn’t
imagine anything worse than having to deal with Doris.
Does the law honour Patrick’s wishes? NO! The property passes to Alison as the longest surviving co-owner and she
becomes the sole owner. Survivorship takes precedence over the terms of a will.
What happens if we have a notebook scenario?
By that I mean, what happens if both joint tenants die at the same moment?
LPA 1925, s184
“In all cases where… two or more persons have died in circumstances rendering it uncertain which of them survived the
other or others, such deaths shall… for all purposes affecting title to property, be presumed to have occurred in order of
seniority, and accordingly the younger shall be deemed to have survived the elder”
Bit harsh, but if Alison and Patrick die at the same time, the youngest will take the property absolutely and then it will
pass according to this joint tenant’s will…
This could still mean good news for Doris.
How is survivorship beneficial in any way?
In domestic context, it usually reflects the parties wishes. Let’s say there is no will, the couple lived in this house
together for 40 years and each party would like the other person to continue living there, survivorship means that there
are no issues.
Simplified probate – no fuss, no expense.
Makes sale of the property easier – the purchaser does not have to investigate the legitimacy of each title.
It turns out, Alison snores too loud
Patrick makes dogs howl when he signs…
THEY CANNOT STAND EACH OTHER.
Can they divide up the interest in land?
Yes, this is known as severance.
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