#4640 - Co Ownership Part I - GDL Land Law

• Co-ownership arises where two or more persons together own the same estate in the same piece of land

• Successive co-ownership: Different parties entitled to ownership of a freehold in chronological succession

• Concurrent co-ownership: Two or more persons own the same estate in a piece of land at the same time

Structure of co-ownership

Imposition of a trust

• “Trust for sale”: vehicle for investment where land was conveyed to trustees who were placed under a duty to sell and reinvest the proceeds (although had power to postpone)

• Separation of legal and equitable title, imposing duties and powers on the trustees

• LPA 1925: trust for sale in all cases of co-ownership

  • S34(2) and s36 LPA 1925 – whenever land was expressly conveyed to more than one person

  • Ss 34(3) and 36 LPA 1925 - trust imposed whenever land was left in a will to more than one person

Abolition of Trusts for Sale: replaced with new concept of ‘trust of land’

• Reform in The Trusts of Land and Appointment of Trustees Act 1996 (TLATA)

  • All trusts for sale existing as 1 January 1997 converted into trusts of land (s1(2)(b) TLATA 1996)

• S4 TLATA: express trusts existing before 1 Jan 1997- trustees will have power to postpose the sale despite any provisions to the contrary

  • Trusts of land created after 1 January 1997 – any provisions which restrict the trustees’ power to postpone are invalidated

• S34 and s36 LPA 1925 have now been amended by para 3 and 4 of Schedule 2 of TLATA 1996 – since 1 January 1997 – in all instances caught by ss34 and 36 – there is now a trust of land

• Section 5 and Schedule 2 TLATA 1996 : circumstances where there would be a statutory trust for sale, there is now instead a trust of land without a duty to sell

Abolition of doctrine of conversion

• S3 TLATA 1996 abolished doctrine of conversion as it applied to trusts for sale – (the rule that interests under a trust for sale were in the proceeds of the sale of land and not in the land itself) – but doctrine continues to apply to trusts of sale created by will where the testator died before 1 Jan 1997 (s3(2) TLATA 1996)

• (note that the doctrine still applies where a vendor contracts to sell land – so that he is deemed to hold it on trust for the purchaser)

Trusts of land

• Trust of land is governed by TLATA 1997 – effective on 1 January 1997

• S1(1)(a) – ‘Any trust of property which consists of or includes land’

• S1(2)(a) – it will apply to all types of trust of land whenever created (with the exception of strict settlements already existing on 1 Jan 1997)

• S1 - bare trusts are included as ‘trusts of land’

• Relationship btw T and B highly regulated under TLATA

Nature of co-ownership

• Two types:

1. Joint tenancy

2. Tenancy in common

• Common feature – each co-owner simultaneously entitled to exclusive possession of the whole land – not specific part

• “Unity of possession” distinguishes co-ownership from sole ownership

Joint Tenancy

The four unities

• All the co-owners deemed to constitute one single owner – unitary body vs. the rest of the world

• Viewed as a single entity – so there must be ‘four unities’ – AG Securities v Vaughan & others

1. Unity of possession

   • Each co-owner as much entitled to possession of any part of the land as the other

   • No joint tenants can be excluded from any part of land

2. Unity of interest

   • Interest must be the same in nature (freehold/leasehold for example) and duration (e.g. fee simple/life interest)

3. Unity of title

   • Must all acquire title under the same document or act – if all take rights by the same conveyance/transfer deed or simultaneously take possession and acquire title by adverse possession

4. Unity of time

   • Interest of each tenant must vest at the same time

Right of survivorship (jus accrescendi)

• Means that when one JT dies – his/her interest in the land passes to the surviving JTs – does not pass under his/her will or intestacy

• Right of survivorship acts immediately on death – whereas a will is operative on death – so survivorship takes effect first (Re Caines deceased)

• Ultimate survivor of all the joint tenants will eventually be the sole owner of the land

Tenancy in common

The unities

• Only unity of possession is essential for a tenancy in common (although others may be present)

• Each co-owner has a distinct ‘undivided share in the land’

• Tenants have quite separate interests, although while the tenancy lasts no-one can say which of them owns any particular part of the land – hence shares being ‘undivided’

• Can be unequal – ‘to A as to one tenth and to B as to nine tenths’

No right of survivorship

• Right of survivorship does not apply to a tenancy in common – deceased’s share will pass under his/her will or by the rules of intestacy

Co-ownership at Law: The Legal Title (Trustees)

Pre 1925

• Joint tenancy caused few problems – number of legal owners would just decrease as owners died

• But tenancy in common at law may have required a purchaser to investigate numerous titles causing conveyancing difficulties

Post-1925 position

• LPA 1925 abolished legal tenancy in common – legal title must now always be held by way of a joint tenancy: s1(6) LPA 1925

• There can be no severance of a legal joint tenancy so as to create a tenancy in common: s36(2) LPA 1925

• Limiting legal title to a joint tenancy ensures that the right of survivorship operates: must only show that the trustee has died (production of death certificate)

• S34(2) Trustee Act 1924 – maximum of legal owners is four

Co-ownership in Equity: The Equitable Interest (Beneficiaries)

• Deals with the actual ownership of the land - the trustees (legal owners) have the role of managing the property

The four unities

• For a joint tenancy to exist – four unities must be present

• If one or more of the unities are missing, the equitable interest cannot be held as a joint tenancy - but provided the unity of possession is present – it could be held as a tenancy in common

Express declaration

• Event where all 4 unities are present – it is still possible for the equitable interest to be held either as a joint tenancy or a tenancy in common

• There might be an express declaration as to how it should be held – will be found in the express words in the grant i.e. will/conveyance/transfer: where there is an express declaration, this declaration will prevail

Words of severance

• Where there is no evidence of an express declaration, a tenancy in common may be found where there are words of severance present in the grant – including:

1. In equal shares (Payne v Webb)

2. Share and share alike (Heathe v Heathe)

3. To be divided between (Fisher v Wigg)

4. Equally (Re Kilvert deceased)

• Such words indicate parties’ intention to have “shares” albeit undivided in the property and thus hold the equitable interest as tenants in common

Presumptions

• Equity is suspicious of the right of survivorship and will not allow a joint tenancy if an equitable presumption vs. a JT if an equitable presumption vs. JT exists:

1. The purchase money is provided in unequal shares: the purchasers are presumed to take as tenants in common in proportion to their respective contributions (Bull v Bull)

   • However- this presumption should now be viewed with caution since Stack v Dowden – HL appeared to infer that in the context of ‘domestic’ properties (i.e. family homes), presumption of tenancy in common arising from unequal purchase contribution will not apply unless one of the parties can prove evidence to the contrary

   • SC confirmed this in Jones v Kernoft – where a ‘home’ is to be held in joint names, equitable title would also be presumed to be held as joint tenants, even where contributions to purchase price were unequal

   • Presumption would only be displaced if the parties’ common intention could justify it in the light of their whole course of conduct

2. Partnership assets – Jus accrescendi inter locum non habet – the right of survivorship has no place in business (Lake v Craddock)

• Presumptions can be rebutted – e.g. by the use of express words in the deed transferring the property (Pink v Lawrence)

Severance of a Beneficial Joint Tenancy

• A beneficial JT can be severed to create a tenancy in common: usually to exclude the operation of the right of survivorship: ‘concurrent ownership will continue but the right of survivorship will no longer apply’: Dillon LJ in Harris v Goddard

• It is not possible to sever a legal JT – s36(2) LPA 1925 –applies even where there would otherwise be automatic severance (e.g. where a new trustee is appointed (thus severing the unities of title and time)

• Severance is usually by unilateral action and normally only affects the owner who instigates it

• Before a beneficial JT is severed – none of the joint tenants have quantifiable interests in the property – (seen as a single entity)

  • When an equitable joint tenancy is severed – the joint tenant who servers takes an equal portion of the interest as a tenant in common

  • In the absence of an agreement btw the co-owners – the shares which arise are always equal in size – irrespective of the proportions that were contributed initially towards the purchase price (Goodman v Gallant)

• For severance to be effective – it must happen during the lifetime of the tenant wishing to sever – a joint tenancy CANNOT be severed by will: Re Caines deceased

Modes of Severance

S36(2) LPA 1925 - Written notice

• Written notice must be given ‘to the other joint tenants’ – must be to all the joint tenants stating unequivocal and irrevocable intention to sever immediately – either expressly or by implication

• Re Draper’s Conveyance – written notice:

  • Summons under s 17 coupled with affidavit amounted...