Co-Ownership in Irish Property Law

Comprehensive flashcards covering the creation, types, severance, and termination of co-ownership under Irish law, including the impacts of the Land and Conveyancing Law Reform Act 2009 and the Civil Law (Miscellaneous Provisions) Act 2008.

When does co-ownership arise?

Co-ownership arises when two or more persons have a simultaneous interest in a particular piece of land.

What are the two types of co-ownership examinable on the FE1?

Joint Tenancy and Tenancy in Common.

What are the 'Four Unities' required for a Joint Tenancy?

Unity of Possession, Unity of Interest, Unity of Title, and Unity of Time.

Define 'Unity of Possession'.

Each Joint Tenant must have the right to possess the entirety of the premises, meaning one Joint Tenant cannot exclude others from any part of the property.

Define 'Unity of Interest'.

Each Joint Tenant must hold the same interest in terms of extent, nature, and duration (e.g., both owning a fee simple).

Define 'Unity of Title'.

All Joint Tenants must gain their interest in the land from the same document or transaction, such as the same Will or Deed.

Define 'Unity of Time'.

All Joint Tenants must take their interest in the estate at the same time.

What is the 'Right of Survivorship' in a Joint Tenancy?

When one Joint Tenant dies, their interest does not pass into their estate; it automatically passes to the remaining Joint Tenants until only the 'last man standing' remains.

According to Swift v Roberts, what is the effect of a Joint Tenant leaving an interest in property in their Will?

The gift will be void because the interest passes by survivorship, not by Will.

What characterizes a 'Tenancy in Common' (TIC) regarding shares?

Owners hold distinct independent shares in the land which are transferable, meaning the right of survivorship does not apply.

Which of the Four Unities is the only one required for a Tenancy in Common?

Unity of Possession.

Which type of co-ownership does Common Law prefer?

Common Law prefers Joint Tenancy.

Which type of co-ownership does Equity prefer?

Equity prefers Tenancy in Common.

What are examples of 'words of severance' that rebut the presumption of a Joint Tenancy?

Words such as 'equally', 'in equal shares', 'to be divided between', or 'respectively'.

In which three situations will Equity infer a Tenancy in Common despite a legal Joint Tenancy?

1. Purchase money provided in unequal shares; 2. Mortgage loans provided by multiple parties; 3. Partnership property.

What is the rule regarding 'Purchase Money in Unequal Shares' established in Collins v Harrison?

Equity presumes a Joint Tenancy where the purchase price was paid evenly, but may find a Tenancy in Common if contributions were unequal.

According to Bull v Bull, what is the right of a co-owner regarding possession?

All tenants are entitled to enjoy the benefits of the property, and one cannot cease the occupation of another.

What was the ruling in Lahiffe v Hecker regarding a daughter who changed the locks on her co-owning siblings?

Her exclusion of the other owners created an indefensible trespass on their rights.

According to Jones v Jones, can co-owners claim rent from each other?

No, co-owners are not entitled to charge each other rent for the property as they have full entitlement to access.

What change did Section $30$ of the $2009$ Act bring to the alienation of a co-owner's share?

Prior written consent from other co-owners is now required to alienate property; unilateral alienation is no longer possible.

What is the definition of 'severance'?

The mechanism used to convert a Joint Tenancy into a Tenancy in Common, which removes the right of survivorship but does not end co-ownership.

Under the Civil Law (Miscellaneous Provisions) Act $2008$, how are Joint Tenants treated if they die in a common tragedy (Commorientes)?

They are deemed to have died simultaneously and are treated as having held the property as Tenants in Common in equal shares ($50/50$).

What was the burden of proof established in Re Kennedy [2000] regarding simultaneous death?

Uncertainty as to the order of death can only be displaced by certainty; the burden of proof is on the party asserting that one Joint Tenant died before the other.

What are the three ways a Joint Tenancy can be severed in Equity?

A) Mutual intention of the parties; B) Course of dealings; C) One Joint Tenant acting upon their own share (with consent).

What occurred in the case of Burgess v Rawnsley?

A mutual agreement to sever a Joint Tenancy was found based on negotiations to sell/buy out a share, even though no formal deed was executed before death.

What is the 'Rule in Tempany v Hynes'?

If a Joint Tenant attempts to sell land but the sale is not completed, their conduct may sever the Joint Tenancy in Equity.

What happened in Cawley v Lillis regarding a defendant convicted of manslaughter of a co-owner?

The court found the assets vested in the survivor, but he held them on a constructive trust of an undivided half-share for the estate of the deceased.

What are the three ways to terminate co-ownership entirely?

1. Union in a Sole Tenant; 2. Partition; 3. Sale in lieu of partition.

How did Section $31$ of the $2009$ Act change applications for partition or sale?

It gave the court wider jurisdiction to make any order it deems 'just and equitable', including orders for sale and distribution of proceeds.