Summary
Summary Joint Tenancy and Tenancy in Common
- Module
- Year 1 Property Law
- Institution
- The University Of York (UOY)
Summary notes on the property law topic of joint tenancy and tenancy in common
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Joint Tenancy and Tenancy in CommonTrusts:
When land is co-owned, a trust will automatically be implied due to legislation (Trusts of Land and
Trustees Act 1996).
Express trusts vs Implied trusts
Implied trusts = Resulting trusts (money in, money out beneficial interest) or Constructive trusts
(imply trust has been constructed primarily through financial contributions)
Types of co-ownership:
Joint tenancy – each wholly entitled to the whole
o Right of survivorship – if A B and C have joint tenancy and C dies, A and B have joint
tenancy
o Commorientes rule (s184 LPA) - In cases where two or more persons die in
circumstances in which is it unclear which of them died first, s184 Law of Property
Act 1925 creates a presumption that the deaths are to have occurred in order of
seniority and therefore the younger shall be deemed to have survived the elder.
o Four unities – Possession, Interest, Time, Title
Tenancy in common – hold in ‘undivided shares’
o Must have same possessory interest but do not need unity of interest, time or title
o No right of survivorship so can inherit
o Quantifiable share in property/land e.g. 1/3
Joint tenancy is the only possible form of co-ownership at law s1(6) LPA.
No severance of legal estate s36(2) LPA.
Maximum of 4 trustees (legal owners) s34(2) LPA.
Co-ownership and Register:
Registrar must enter a restriction whenever two or more people are registered as joint (legal)
owners s44(1) LRA.
Where only one legal owner is registered, but a trust of land exists the beneficial owner should
register a restriction on the proprietorship register.
Severance (changing equitable joint tenancy to equitable tenancy in common) is complex – s36(2)
LPA and Williams v Hensman.
Overreaching:
Overreaching = process that allows a buyer of a legal estate in land (both in registered AND
unregistered land) to ignore beneficial interests affecting the estate.
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