Summary
Summary Co-Ownership - Land Law (LLB)
- Module
- Land Law
- Institution
- City University (City)
Co-Ownership Summarised Notes for the Land Law module, LLB, at City, University of London (achieved a 1st class using these)
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By: umerabibi • 3 year ago
By: araerinle • 2 year ago
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CO-OWNERSHIPNature and Types of Concurrent Co-ownership
Simultaneous enjoyment of rights of ownership by two or more persons at same time, after 1926
con-current ownership by either joint tenancy or tenancy in common
JOINT TENANCY - need all 4 unities for joint tenancy
Land owned by 2 or more people, each co-owner entitled to whole land, no shares, treated as
owned by one person and all joint tenants participate in one ownership
Title is owned by all joint tenants, one title registered, each co-owner registered as proprietor of
that title in proprietorship section of register
Co-ownership no shares, no partition of land, but right to whole land enjoyed simultaneously
Right of survivorship (ius accrescendi): if one joint tenant dies, their interest in joint tenancy
automatically goes to remaining joint tenants no formal conveyance or written document
needed to reflect new status, a person by will cannot pass an interest under joint tenancy
1925 Law of Property Act
-s.1: legal ownership of a property can only be through joint tenants, no more than 4, and the only
interest can be fee simple or the terms of year absolutely sold conveyancing easier
-All other interests, short of leasehold or of freehold, are equitable or beneficial interests
-Name on registry are legal owners (trustees), if sold beneficiaries not have no rights on new owner
Four unities
UNITY OF POSSESSION: each joint tenant entitled to physical possession of whole land, no
physical division. One joint tenant may be excluded on terms and conditions (s.12 and 13 of
TOLATA 1996) does not destroy unity of possession
UNITY OF INTEREST: interest in property same nature, duration, of freehold or leasehold
UNITY OF TITLE: each joint tenant must derive their title from same conveyancing documents,
but in certain circumstances can have joint tenants if each signed different documents
o Antoniades v Villiers [1990]: couple lease of one-bedroom flat and signed separate
documents, landlord provided double bed in one bedroom, court held absurd for couple as
having separate rights to the land, and derived their title from the same document
UNITY OF TIME: interest of each joint tenant must arise at same time e.g. lady buys house in
2009, later gets married + grants husband equal sharecannot be joint tenants re-convey
TENANCY IN COMMON
Two or more people who have ‘undivided shares in land’, distinct share in value e.g. 70%
Each co-owner has distinct and quantifiable share in land, cannot physically divide it sold value
Only unity of possession must be present, even though value is divided, land itself cannot
Right of survivorship does not apply, so a co-owner can lead in will
Tenancy in common may come about through severance of joint tenancy parties to a joint
tenancy can terminate form of co-ownership into a tenancy in common
-Legal owners can only be joint tenants, cannot be tenants in common at law
-Only allowed 4 joint tenants at law: e.g. A B C D E first 4 joint tenants hold for themselves + E
-Trustee= legal owner, equitable owner= beneficiary
-Can be a joint tenant + tenant in common at equity
Effect of LPA 1925 and TOLATA 1996
1
, Before January 1926: before could be JT + TIC at law and equity complex
After January 1926: limit co-ownership to 2, joint tenancy + tenancy in common
oOnly JT on legal title, and joint tenancy of a legal title is ‘unseverable’ (s.36(2) LPA)
oJoint tenancy of legal title special legal title held by JT trustees on ‘trust of land’ hold for
equitable owners e.g. A,B,C,D hold land as trustees, but also ‘real owners’ so for themselves
oLegal joint tenants limited to 4 (s.34(2) LPA). Number in equity not limited as JT or TICif more
than 4, first 4 names joint tenant, but all own in equity as either JT or TIC
Joint Tenancy and Tenancy in Common (equitable interest)
4 unities for joint tenancy in equity missing=common way for equitable tenancy in common
If conveyance expressly states‘ joint tenants’ or ‘tenants in common’ conclusive
o Roy v Roy [1996] brothers convey jointly held conclusively between them as a joint tenancy,
despite 1 contributed significantly more to purchase and upkeep property
o Land Registry provides a form – Form JO- that expressly declare beneficial interests
o Valid written declaration may be departed from if later conduct amounts to an estoppel
o Stack v Dowden [2007]: Ms Dowden and Mr Stack joint tenants of legal title, nothing stated on
equitable interest Ms Dowden successfully claimed larger share of equitable interest
‘Words of severance’ tenancy in common exist in equity e.g. A + B with two-thirds to A
If express declaration on equitable interest or words of severance absent + four unities present=
presumption ‘equity follows law’ legal title joint tenancy, equitable title= joint tenancy also
• If the parties to trust are business parties, presumption they are tenants of common, assume if it is
domestic couples JT as other partner would want share when die
The Statutory Machinery Governing Co-ownership (co-ownership simple in practice)
Impossible for a tenancy in common of a legal estate to exist
Joint tenants= trustees of estate, property on trust for equitable owners (usually same as legal)
Legal JT limited to 4, first 4 named + equitable owners is unlimited
Owners of legal title hold property as joint tenants subject to express terms of trust + statute
Trust of land trustees under no duty to sell land, now not sold, but as land to be occupied
Trustees not agree to sell land – any interested person, under TOLATA s.14, apply to court for sale
land but now no duty to sell and trustees have right to hold land
Specific attributes of unseverable joint tenancy under trust of land by TOLATA 1996
If trustees sell land, hold proceeds of sale for equitable owners
Before= trust for sale, s.3 TOLATA abolishes ‘doctrine of conversion’ now trust for land
Trustees no duty to sellpower to sell, all trustees (legal title)–must be in conveyance
City of London Building Society v Flegg [1988]: couple purchased house, parents gave half
purchase price, defaulted on mortgage, sought possession, parents argued they had equitable
interest held mortgage company paid to 2 trustees, so parents interest
overreachedpossession despite parents and children having actual occupation
Ability to deal with land lies with legal owners
oSale (incl mortgage) by all trustees, two or more=overreach interests of equitable owners
oIf only one trustee, interests of equitable owner cannot be overreached
oIf trust created by ‘disposition’ trustee’s power of sale can be of consent of beneficiaries
Advantages of 1925 and 1996 Legislative Reforms
2
, Ensure value of land as an economic asset + promote free alienability of land, simplifies
conveyancing and provides protection of purchasers of land and interest
Land no longer owned by few wealthy families, and reflects use and ownership of property
Before January 1926, buy co-owned land need to investigate title JT or titles of every TIC time
consuming + objection of one could prevent sale or mortgage of land now just 1 legal title
All trustees must agree to sell, if trustee disagrees with how land should be used, application
under s.14 TOLATA made to court order to sellcan go past interests of equitable owners
DISPUTES BETWEEN CO-OWNERS (s.14 TOLATA)
Disputes as to sale: whether sell or retain for occupation or generate income
s.14 TOLATA any person with an interest may apply to court for an order for ‘the exercise by the
trustees of any of their functions’ or declaring nature and extent of a person’s equitable interest
s.14: disputes as to of size of co-ownership interests, disputes regarding occupation of trust land,
authorising transactions without consent, dispute whether should be sold
s.15: factors the courts take into account e.g. if there are minors, purpose of property,
circumstances of beneficiaries, intentions of parties, interests of creditors
Orders whether property should be sold
TOLATA no duty to sell – it is a trust of land –courts now may still order when only co-owners are
in dispute and no extrinsic factors (e.g. no children) as supports alienability of co-owned land
Refuse sale; refuse sale but order regulating right to occupy property; order sale; order sale but
suspend order for short period; partition co-owned property (in exceptional circumstances)
Courts approach varies depending on circumstances, not favour a sale (as s.14)
Jones v Challenger [1961]: marriage broke down, wife moves out to live with new partner,
purchased house as joint tenants, no children, wife wants property sold, court ordered sale as end of
marriage but gave husband period to buy a new property or buy out the wife’s share
Harris v Harris [1996]: Mr Harris dies, Mrs Harris wants house sold, one of daughters does not
held purpose of trust was to provide a familial home not just for marriage
Chun v Ho [2002]: one party doing degree, fell out with partner, court allowed person to stay in
property until completed education
Williams v Williams: joint tenants, husband gave most purchase price but still joint tenants, divorce,
wife stays in house and continues to pay mortgage, husband sought a sale court held since she was
paying mortgage herself no reason to displace her and children
BANKRUPTCY
Factors in s.15 TOLATA not apply when a person interested in co-owned land is in bankruptcy
Application under s.14 TOLATA with s.335A of Insolvency Act 1986 gives factors court consider
Under Enterprise Act 2002, trustee in bankruptcy should apply for sale within 3 years of
bankruptcy, or risks property returning to bankrupt free from claims of creditors
s.335A: interests of bankrupt’s creditors, conduct of bankrupt’s spouse (who wishes to stay in
house usually), needs of spouse and any children, not needs of bankrupt
Application made after 1 year, courts shall assume, unless exceptional circumstances, shall favour
creditors – courts are very strict on this
Everitt v Budhram [2009] mental state of bankrupts spouse sufficiently exceptional to justify
postponement of sale beyond one-year period
Order sale in bankruptcy case after 1yr could be against Art 8 ECHR should not favour creditors
Summary of sale
3
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