A step-by-step summary of how to approach a problem question on co-ownership with academic quotes. Structure and approach helped me achieve a first class in the final exam.
CO-OWNERSHIP
2 types of co-owenrship : JT or TinC
The legal estate is always held in JT whereas the equitable estate can be held either in JT or TinC
LPA 1925 section 1
Determining Joint Tenancy or TinC
Joint Tenancy : 4 unities
STEP 1 : How is the estate held in law?
Set out statutory framework
● LPA s1(6) – co-ownership of legal title can only be a Joint Tenancy/JT exist both as legal title
and equitable title and TIC can only exist as equitable title, s1(6) LPA 1925./
● LPA s36(2) – legal Joint Tenancy cannot be severed
● At the start the legal title will be held automatically, unless otherwise stated, by only the first
four named of conveyance, who are of age s.34 (2) TOLATA.
● The legal cannot be held as anything but a joint tenancy as there is no distinct level of shares.
The nature of joint tenancy is that it is a collective ownership. The individual joint tenant has
nothing which he can truly describe as ‘mine’; it is all ‘’ours’’.
STEP 2 : How is the legal joint tenancy held under a trust of land in equity?
● JT or TinC
● Presumptions
STEP 3 : Can we rebut the presumptions?
1. Is there express wording of written document that stipulates how parties must hold in equity?
****If express wording says JTs, despite unequal shares = JTs Goodman v Gallant (1986),
unless this written document is voidable for fraud or other misrepresentation
2. Is there an absence of unities (PITT)? ****If yes then equitable JT -> T in C
3. Can the common intention be inferred from ‘surrounding circumstances’? ****Product of
Stack v Dowden (2007) and Jones v Kernott (2011) Is there evidence of a common intention
that A and B would hold their shares a certain way? Baroness Hale circumstances to look for
intention (Stack):
● Advice or discussions at the time of the transfer which cast light on intentions
● Reasons for the home being acquired in their joint names
● Reasons why the survivor was authorised to give a receipt for capital moneys
● Purpose for home being acquired and nature of the parties’ relationship
● Were there children for whom they both had responsibility to provide a home?
● How was the purchased financed: initially and subsequently
● How did the parties arrange their finances (separately, together?)
● How were outgoings of the property and other household expenses discharged?
1. Has there been an act of severance?
i. Was a written notice under LPA 1925 s36(2) served?
● Did this notice express an unconditional intention to affect an immediate severance by the
author of the notice? Harris v Goddard (1983)
● Was the notice formally communicated to the other JT? If no then ineffective.
● LPA s196(3) says that if left at the last known place of abode or business – Kinch v Bullard
(1999)
● Does the postal rule s196(4) exception apply?
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