Land Law: Co-ownership

what is co-ownership/concurrent ownership?

Two or more people together own the same estate in the same piece of land at the same time

What governs the law of co-ownership?

Trusts of Land and Appointment of Trustees Act 1996

When a land is jointly owned, and a trust of land is imposed, how is this separated?

Into:

- Legal title

- Equitable title

Who is the legal title held by?

Trustees

Who is the equitable title held by?

Beneficiaries

What is involved in the title of a trustee?

- Registered owner(s) at Land Reg

- Carries powers and duties of management which involve:

- signing documents

- execute mortgage and transfer deeds

Does a trustee enjoy rights of enjoyment over land?

NO

What is involved in the title of a beneficiary?

- BENEFIT from the trust

- Names are kept private and arrangements relating to the equitable title do not appear on the reg

- Regarded in equity as the 'equitable owner' and have a proprietary right in the land subject to the trust.

- Interest only takes effect in equity

What are the two different kinds of trusts that can arise?

Express trust

Implied trust

What formalities are required for the creation of an express trust?

EVIDENCED in writing, and signed by declarants

What is an implied trust?

Created impliedly, arises under certain circumstances

What are the different types of implied trust?

- Resulting trust

- Constructive trust

What is a resulting trust?

Its a trust that 'results' from the circumstances/actions of the parties involved rather than created from formal agreement.

one person holds legal title to property, but is considered to hold it for the benefit of another person.

Imposed where failed express trust.

What is a constructive trust?

Where someone holds legal title to property BUT holds it in a fiduciary capacity for the benefit of another person.

Imposed where it is unconscionable for legal owner of land to deny interest of another person.

Designed to prevent unjust enrichment and ensure the person in possession of property does NOT retain it unfairly.

What distinguishes co-owners from sole owners?

The fact that no co-owner is entitled to exclusive possession. All owners are entitled to possession. This is referred to as:

'unity of possession'

What are the two types of co-owners?

Joint Tenancy

Tenants in Common

Does a joint tenant enjoy the right of survivorship?

Yes - this applies

What must co-owners hold in order for a Joint Tenancy to exist?

Four unities

What is the one thing joint tenants and TinC have in common and both require?

Unity of possession: each co-owner is as much entitled to possession of any part of the land as the others. Cannot be excluded. For TinC, they each have a distinct but undivided share in land.

Are shares concerned in TinC or JT?

TinC:

- Share can be proportionate to contribution

- Each person has own share

Does right of survivorship apply to TinC?

No

What are the four unities?

- Unity of possession

- Unity of title

- Unity of interest

- Unity of time

What is the right of survivorship in reference to joint tenancy?

Occurs where one co-owner dies, then the notional interest of deceased JT accuses to the surviving JT.

This operates automatically, and is unaffected by provisions in a will/intestacy rules

What happens where an individual passes in a TinC?

This interest/share will pass in accordance with the deceaseds will/intestacy rules

Legal title holders must hold the property as what?

JT - because it is a JT, trustees must have 4 entities. Seen as a single entity and collectively hold the WHOLE legal estate.

Does right of survivorship operate in legal title of a JT?

Yes

Can a legal JT be severed to make a TinC?

NO

what is the limit on people being a trustee?

What other requirements are there?

maximum of 4

- sui juris: full age and sound mind

- Legal title holders must hold the property as JT

Do the names of equitable owners appear on the register of title?

No

What requirements that are seen in legal title don't apply to equitable title?

- No limit on people who can hold an equitable interest

- No requirement to be Sui juris

- Equitable owners can choose whether they hold title as JT or TinC

If in an equitable title someone chooses to hold title as a JT, what is required here?

4 unities

What happens if under an equitable title, they hold a JT BUT title, time and interest are not present?

TinC [as long as possession exists]

What should parties make if holding a beneficial interest as a JT?

Express declaration

Where can an express declaration be found?

in will OR transfer deed

Can an equitable JT be severed?

Yes

What is the effect when an equitable JT has been severed?

Turns the interest into a TinC - interest can pass by will/intestacy, and NOT survivorship

Can legal title as JT be severed?

NO

What are the two recognised ways that an equitable JT can be served?

- Notice in writing

- Other acts or things

When must severance take place?

During JT lifetime. Making a will wont sever a JT.

It cannot be reversed.

What is the effect of severance?

- How much of the share is taken?

- How does this impact the remaining JT?

Each takes equal share according to the total number of JT. It is NOT based on the % contributions made to the initial £.

It only affects the owner who instigates the severance. The remaining equitable JT continues to hold the equitable title as JT.

What happens if there is only two JT, and one decides to sever?

Severance affects them both. IF one severs, JT will come to an end and each JT will be TinC as one half.

If severing by notice in writing, does this need to be signed?

No

Must be:

- unequivocal

- irrevocable intention

- immediate

- served on ALL equitable JT handed/left at last known place of address

If notice to sever has been left at last known place of address and the equitable JT's don't read this, has severance taken effect?

Yes - it is regardless if it has been read.

If severing equitable JT through: "other acts or things", what are the three ways this can be achieved?

- Unilateral act by one JT operating on own share

- Mutual Agreement

- Mutual Conduct

Do you reuiqre for other JT to know or consent to severance before this takes place?

No

What can a unilateral act by one JT operating on own share be subdivided into?

3 types of alienation:

1. total alienation

2. partial alienation

3. involuntary alienation

What is total alienation?

severing owner disposes [sale/gift] equitable interest PERMANENTLY

What is partial alienation?

- what is a form of this

Severing owner temporarily disposes of equitable interest.

Done by mortgage/lease: when repaid, the interest is taken back

What is involuntary alienation?

JT declared bankrupt - done against the will of a JT.

Automatically severs equitable interest and vests a trustee in bankruptcy.

What is mutual agreement?

Present must be: express/informed agreement to change basis on which co-ownership will continue.

Occurs where all equitable JT agree 1 persons interest is severed.

Creates a TinC, need not enforce a contract that complies, BUT must amount to an agreement. Serves as an indication of common intention to sever.

What is mutual conduct?

if cannot point to moment for mutual agreement, may be severance by conduct.

Look at parties behaviours - recognition of separate shares.

Does an equitable JT need to be severed with notice?

No

How are disputes relating to land held in trust resolved?

s.14 ToLAoTA 1996: - courts jurisdiction to hear applications.

Who can apply concerning a dispute relating to land held in trust?

Anyone with an INTEREST to hear applications.

The court may order something be done, what could this be?

- orders for sale

- orders as to who occupies

- orders: nature/extent of a beneficiary's interest

How do courts make their decisions?

(what factors are considered?)

- Intentions of person creating trust

- Purpose which property subject to trust is held

- Welfare of minor who occupies

- Interests of secured creditors of beneficiary

The court must have regard to wishes of whom?

Beneficiaries (over 18). If there is a dispute, court should have regard to majority.