concise co ownership

co ownership

co ownership occurs when two or more people own land simultaneously

there are two types:

1.joint tenancy

tenancy in commons

joint tennacy

• each owner is wholly entitled to the whole property-no distinct shares

• right of survivorship: if one co owner dies their share automatically passes to the others

• the 4 unites required are

  1. possession-posses whole property without exclusion

  2. interest-share joint interest in extent and nature and duration of property

  3. title-vested in the same manner-auqired through same doc

  4. time-vested at the same time (purchase same time)

     if any of these are missing ownership defaults to tenancy in common

tenancy in common

• each ci owner has a distinct share of the property whether they be equal or unewaul shares

• there is no right to survivorship, the interest can be passed in a will and in testimony

• only unity of possession (entitled to whole property no exclusions) is required

severance of a joint tenancy (converting to tenancy in commons)

1. alienation- selling or gifting a share

2. mutual agreement-all joint tenants agree to sever

3. mutual conduct- circumstance or actions indicating intention to hold separate shares

4. written notice s36 (2) lap 1925- clear intention to sever properly served (delivered or deemed to be delivered)

5. homicicde-cant profit from murdering another tenant so rented from inheriting

6. bankruptcy- bankrupt tenant share passes to a trustee in bankruptcy (as a tenancy in common specific share)

trusts of land tolata 1996

co ownership operates as a trust of land under tolata 1996

trustees have the power to sell or retain land

beneficiaries must be consulted s11

dispute resolution and sale of property

s14 tolata states any interested party can apply to court for an order to sell or retain the property

s15 states the courts consider these factors:

original intentions of purchase

purpose of the trust (home, business)

welfare of minors occupying the property

interests of secured creditors like banks

overeating s 27 lap 1925- buyer is protected from beneficiary interest if they pay at least 2 trustees changing beneficial interests from property to the sale purchase price

termination of a tenancy in common

1. sale to a third party-if all owners agree to sell property the tenancy in common ends when prop is transferred to new owner but if one tenant sells their share the new owner takes their place as a tenant in common with the remaining co owners

2. partition of land- the property is physically divided between the crowner creating separate legal ownership-typically applies to large areas of land rather than houses

3. acquisition by one owner- if one tenant in common buys out all the other shares they become the sole owner and the tenancy in common ceases-the property is then owned in a single legal and equitable title

legal ownership

legal title is always joint tenancy

must be at least 2 trustees and maximum of 4 trustees

these must all be over 18 and of sound mind and capability

thee trustees also have equitable interest which is separate

equitable ownership- joint tenants or tenants in common

4 stage test to determine ownership:

1. are the 4 unities present -if not the interest is in common

2. is there express declaration (goodman v gallant)-if conveyance doc for registered land clearly states whether the co owners hold as joint or common its conlcusive

3. are there words of severance?phrases like in equal shares and to be divided between indicate an intention to hold separate shares as tenants in common

4. equitable presumptions of commons apply-when there is unequal contributions to purchase price+ mortgage by multiple lenders (2+ lend money together to recover specific amounts)+ property for partnership in business+different purposes for property :if non apply the equitable interest remains joint tenancy