#14644 - Co Ownership - GDL Land Law

_______________________________________________________

General Principles

Tension between legal certainty & the use of land (emotional value)

Two types of co-ownership:

• Successive interests/consecutive co-ownership - ‘law of settled land’

• Concurrent interests/co-ownership

Joint Tenants & Tenants in Common

Joint tenants:

• 1 title (single entity)

• No proportional ‘share’

  • Gould v Kemp – attempt to leave ‘share’ in will was deemed impossible

  • Input to purchase price is irrelevant

• Right of survivorship

  • Re Caines – a co-owner’s will is irrelevant if they are joint tenants

• Four unities are essential:

  • Possession: entitled to possess all of the land/ possess the fruits of the land

  • Interest: they must have either a freehold or leasehold for the same duration

  • Title: they must derive title from the same document (pre-registeration title could have been fragmented)

    • Leasehold: signing the same lease will usually indicate unity of title

    • Antionades v Villiers – landlord got a couple trying to rent 1 bedroom flat to sign different leases on different days. HL held that it was illusory to suggest they were separate title-holders

  • Time: JT’ interests must start & end on same day

    • This is a real difference in time, not a formal difference

    • HSBC v Dyche – different times

Tenants in common:

• Undivided share in land

• Unity of possession must be present; other unities may be present

• No right of survivorship

• May be the result of severance of a joint tenancy

LPA 1926 and TOLATA have historical significance: they were trying to encourage conveyancing & alienability to break up monopolies; big success in sharing out land ownership

Trusts of Land

Legal title:

• ONLY ever as JT S.1(6) LPA

• Max 4 trustees S.34(2) Trustees Act 1925 who must be

  • Sui juris

  • Over 18

• All 4 unities exist

Equitable title (see ‘Trusts of the Family Home’ doc for the acquisition/quantification of equitable property rights)

• May be JT or TIC

• No age or sui juris

• No limit on number of beneficiaries

• Does not have to be written on the transfer deed

Determining whether equitable title is held as JT or TIC:

• If the interests of title, time & interest are not present = TIC

  • Common through increased use of constructive & resulting trusts (Stack v Dowden)

• If there is an express declaration in writing (S.53(1)(b) LPA) on the conveyance as to the nature of the equitable holding it will be conclusive (Goodman v Gallant) – Land Registry’s Form JO (but not compulsory- criticism from Lady Hale in Stack)

  • Pankhania v Chandegra – there is no room for resulting/constructive trusts where there is express declaration

  • Roy v Roy – unequal contributions as to purchase price not relevant

  • Proprietary estoppel may function against an express declaration Clarke v Meadus (See ‘Licences & Proprietary Estoppel’ doc)

  • Contractual doctrines vitiating consent will operate

• Words of severance are used

  • “in equal shares” Payne v Webb

  • “to be divided between” Fisher v Wigg

  • “equally” can mean either – but the presumption that equity follows the law may be determinative in the absence of other evidence

• No express declaration or words of severance? Equity follows the law EXCEPT where the following counter-presumptions apply:

  • Where court of equity finds right of survivorship inappropriate:

    • Malayan Credit v Jack Chia – business relationships

    • Re Jackson – co-mortgagees

  • Common intention

    • Jones v Kernott unequal contribution to purchase price evidence of common intention as to tenancy in common via constructive trust

    • Laskar v Laskar unequal contribution to purchase price in mixed residential/commercial resulting trust

      • Carlton v Goodman; McKenzie v MzKenzie; Lord Neuberger in Stack v Dowden resulting trusts in family home

Theory behind statutory machinery:

• Curtain principle: trustees have powers over the land

  • Often legal & equitable identities will match in reality

• Overreaching S.2(1)(ii) LPA

  • 2 trustees needed

  • Only overreach equitable shares which can be converted into cash

  • However it can lead to hardship – CoL BS v Flegg – no OI as overreached; powerless

  • If trustee spends equitable owner’s overreaching money - breach of trust remedy

  • S.10 TOLATA does provide an express consent mechanism if the trust is created by a disposition (usually express declaration not informal) for trustee to exercise power of sale

• Survivorship between joint tenant trustees is paperless & automatic

Severance

JT -> TIC (extinguishing survivorship)

Sever to equality

• S.36(2) LPA: Statutory notice. A unilateral method of severance i.e. the other people don’t have to join in: any written communication that reveals an immediate intention to sever (doesn’t need to be formally a notice)

  • Kinch v Bullard: it is enough that the notice is delivered & not read. In this case the claimant delivered a notice but before it was read the other tenant died, so naturally wanted to argue that it didn’t count because he’d get everything

  • Re: 88 Barclay Rd: should be read in accordance with S.196 LPA which deems service at posting

  • Burgess v Rawnsley: must be an immediate intention to sever - not ‘I am thinking of severing my share’. It cannot be something that may happen, but rather something that is happening.

• Unlawful killing: if one joint tenant kills the other, they cannot rely on the joint tenancy. (This is distinct from the forfeiture rule which sometimes provides for the same)

  • Re Crippen: the ‘acid bath murderer’

• Williams v Hensmon Page-Wood VC summarises the following three:

• Act operating on your own share: the person wishing to sever does a legally valid act which presumes that their share has been severed e.g. entering into a contract to sell a co-owner’s share of the property; mortgages their share, or maybe leases out their room. In the case of a sale, the transferee would then be the owner of that share. This, too, is unilateral

  • Total alienation: gifting/selling to third party

    • S.53(1)(b) LPA in writing

    • Ahmed v Kendrick – husband’s forged signature of sale as act of total alienation

  • Partial alienation: mortgaging/charging/leasing

  • Involuntary alienation (automatic trigger from bankruptcy)

  • Contract to alienate Brown v Raindle

  • Litigation – though unsure because of its revocable nature Nielson-Jones v Fedden

• Mutual agreement: where all of the joint tenants agree to terminate the joint tenancy. This does not need to be in writing & can be verbal - it can also be an inference from the negotiations that they may be having about the house

  • Burgess v Rawnsley – at some point in time they should each own a share of the property; agreement on price is proof of this (though not conclusive); oral agreement may suffice

• Mutual conduct: all of the parties behave as if the joint tenancy doesn’t exist anymore. Conduct, taken as a whole, implies that they do not consider themselves to be joint tenants anymore

  • Greenfield v Greenfield – insufficient to divide property

  • Davis v Smith – agreement in principal, legal advice, application to court weigh strongly in favour of severance

Disputes

S.14 TOLATA power of the court to make an order in respect of the function of the trustees

S.15 TOLATA matters relevant to determining applications

• White v White – necessary but not exclusive factors

Standing to apply is wide –anyone with an interest

Replaces the narrower S.30 LPA

• Designed to enable courts to prevent sale

• The...