ownership PowerPoint

WORKSHEET 7: CO-OWNERSHIP

LECTURER: Grace Bhagwandeen

  • For academic purposes only.

  • Not to be cited or used outside the course context without the express permission of the author.

OBJECTIVES/LEARNING OUTCOMES

  • Demonstrate an understanding of the meaning of co-ownership in land.

  • Demonstrate an understanding of the characteristics of a joint tenancy.

  • Demonstrate an understanding of the four unities and the right of survivorship.

  • Demonstrate an understanding of the characteristics of a tenancy in common.

  • Explain what is meant by severance.

  • Demonstrate an understanding of the methods of severance.

  • Discuss the view that equity prefers a tenancy in common to a joint tenancy.

REQUIRED READINGS

  • Stuart Bridge, Elizabeth Cooke, Martin Dixon, The Law of Real Property, Sweet and Maxwell, 9th edition, Chapter 12.

  • Sampson Owusu, Commonwealth Caribbean Land Law (London and New York: Routledge and Cavendish), Chapter 9.

  • Gilbert Kodilyne, Commonwealth Caribbean Property Law, Routledge-Cavendish, 3rd edition (or latest edition), Chapter 12.

  • Kevin Gray and Susan Francis Gray, Land Law, Oxford, 6th edition, Chapter 7.

  • Kevin Gray and Susan Francis Gray, Elements of Land Law, Oxford, 5th edition, Chapter 7.

CO-OWNERSHIP

  • Definition: Co-ownership is the form of ownership where two or more persons simultaneously own an estate in the same parcel of land.

  • There are two types of co-ownership in modern law:

    • Joint Tenancy

    • Tenancy in Common

JOINT TENANCY

  • Definition: A joint tenancy exists when land is conveyed or devised to two or more persons without ‘words of severance’.

  • Example: Conveying land as ‘to Bill and Ben in fee simple’.

  • Characteristics:

    • One title: Joint tenants are viewed as a single owner.

    • Separate rights: Each has separate rights among themselves, like the right to sever the joint tenancy.

    • Rights and holdings: Each tenant holds the whole estate, entitled to present possession but not to exclusive possession of any individual part.

  • Essence: It is a homogeneous co-ownership where the entire estate is vested simultaneously in all co-owners.

  • Right of survivorship (ius accrescendi):

    • Upon one tenant’s death, their interest automatically accrues to the surviving tenants, preventing any interest from being passed under a will or intestacy unless they sever the joint tenancy while alive.

  • Case Reference: Panton v Roulstone (1976) 24 WIR 462.

CREATION OF A JOINT TENANCY

  • Requirement: Joint tenancy is created when land is conveyed to two or more persons without any indication they are to take separate shares, such as ‘To A and B in fee simple’.

  • Example: Vested equally without terms indicating distinct interests = joint tenancy.

  • Words of severance: If the grant specifies ‘to A and B equally’, a tenancy in common is created instead.

JOINT TENANCY: THE FOUR UNITIES

  • Essential for a joint tenancy:

    • Unity of possession.

    • Unity of interest.

    • Unity of title.

    • Unity of time.

UNITY OF POSSESSION

  • Each joint tenant is entitled to possession of the whole land.

  • No joint tenant can assert exclusive rights over any part of the property.

  • Legal Reference: Meyer v Riddick (1990) 60 P & CR 50.

  • Outcome: Joint tenants who find co-tenants intolerable do not have common law remedies.

UNITY OF INTEREST

  • All joint tenants must hold the same type of interest, duration, and nature.

  • Example of allowable difference: A minor can hold an equitable interest alongside an adult.

  • References: Singh v Mortimer (1967) 10 W.I.R. 65; Re Gardiner [1924] 2 Ch 243.

UNITY OF TITLE

  • Title must derive from the same document for joint tenants.

  • Includes agreements or wills.

  • Reference: Kevin Gray and Susan Francis Gray, Land Law.

UNITY OF TIME

  • Interests must vest simultaneously.

  • Example: If land is conveyed to different heirs dying at different times, they cannot take as joint tenants because the unity of time is violated.

  • Reference: Gilbert Kodilyne, Commonwealth Caribbean Property Law.

CHARACTERISTICS OF A JOINT TENANCY

  • Characteristics:

    • Right of survivorship (ius accrescendi).

    • Presence of the four unities.

    • Each joint tenant holds the entirety, but not any exclusive part.

A. RIGHT OF SURVIVORSHIP (IUS ACCRESCENDI)

  • Description: If one joint tenant dies without a separate share, their interest is extinguished, going to the surviving tenants.

  • Implication: A joint tenancy does not pass under a will, as survivorship prevails.

  • Rights: A joint tenant can alienate their interest while alive but cannot dispose of it upon death.

  • Exceptions: Criminal killing of another joint tenant nullifies this right.

  • References: Kevin Gray and Susan Francis Gray, Land Law.

B. THE PRESENCE OF THE FOUR UNITIES

  • See previous discussion on unity of possession, interest, title, and time.

TENANCY IN COMMON

  • Basic principles:

    • Only unity of possession exists.

    • No right of survivorship.

  • Holders possess distinct shares; for example, one-half, one-third, etc., in undivided shares.

  • Distinct shares can pass under will or intestacy.

  • References: Kevin Gray and Susan Francis Gray, Land Law.

CREATION OF A TENANCY IN COMMON

  • Conditions for creation:

    • Land granted with words of severance designating separate shares, e.g., ‘equally’, ‘to be divided amongst’.

    • Situations where equity treats a joint tenancy as a tenancy in common.

    • Severed joint tenancies due to several conditions: alienation, agreement, or course of dealing.

  • Case References: Christian v Mitchell Lee (1989) 13 W.I.R 392; Martin v Colebrook.

EQUITABLE PRESUMPTION OF TENANCY IN COMMON

  • Legal perspective: Equity tends to favor tenancies in common for their certainty over joint tenancies' elements of chance.

  • Situations presumed to create tenancy in common include cases of:

    • Unequal contributions to purchase money.

    • Loan on mortgage.

    • Partnership assets.

    • Property acquired for individual business purposes.

DISTINCTION BETWEEN A JOINT TENANCY AND A TENANCY IN COMMON

  • Key differences include:

    • Lack of right of survivorship in tenancy in common—shares do not change post-mortem.

    • Only unity of possession is required for tenancy in common.

    • Tenant in common shares differ as defined by an initial fixed ratio.

  • Reference: Kevin Gray and Susan Francis Gray, Land Law.

SEVERANCE OF A JOINT TENANCY

  • Definition: Severance refers to the conversion of a joint tenancy into a tenancy in common.

  • A joint tenant may sever to evade the ius accrescendi effects.

  • Types of severance as identified by Williams v Hensman (1861) include:

    • Act of a joint tenant operating on their share.

    • Mutual agreement.

    • Course of dealing (mutual conduct).

A) ACT OF JOINT TENANT

  • To effect severance, the act must be final and irrevocable.

  • Alienation: Total or partial alienation of interest signifies severance, making transferees tenants in common.

  • Scenario: If a joint tenant mortgages their interest or goes bankrupt, it may trigger severance as well.

  • Case Reference: Gamble v Hankle (1990) JLR 115.

B) COMMENCEMENT OF LITIGATION

  • Initiating litigation is seen as an act on the share of the involved joint tenant, equating to severance.

  • Legal Reference: Re Draper’s Conveyance [1967] 3 All ER 853.

C) MUTUAL AGREEMENT

  • A valid agreement for alienation causes severance, possibly without full enforceability or written proof.

  • Can occur when joint tenants agree on sales, leases, or division of proceeds.

  • Example: Joint tenant spouses entering a separation agreement regarding property division.

  • Case Reference: Burgess v Rawnsley [1975] Ch 429.

D) COURSE OF DEALING

  • Severance occurs through mutual conduct reflecting intentions to treat interests as a tenancy in common.

  • No express agreements are needed, just actions indicating consensus.

  • Example: Negotiations between estranged spouses regarding property arrangements could indicate a common intention that leads to severance.

  • However, unilateral declarations do not suffice.

OTHER METHODS OF SEVERANCE

  • Additional methods include:

    • Acquisition of an additional interest in land.

    • Severance through written notice.

  • Case References: Kinch v Bullard [1999] 1 WLR 423; Re Draper’s Conveyance; Gibson v Walton (1992) 28 Barb LR 113.

PARTITIONS

  • Definition: A process by which co-owners split property into distinct parcels, ending co-ownership.

  • Statutory provisions: Under the Partition Acts 1539 and 1540, co-owners have the right to compel partition.

  • Alternative: The Partition Act 1868 allows courts to decree sales instead of partition for properties not divisible.

  • Implications: Orders for partition or sale allow co-owners to obtain equitable shares from proceeds.

  • Case References: Seunath v Seunath; Superville v Superville (1999).

To write an essay on co-ownership based on the provided notes, you could follow a structure that systematically addresses the definitions, characteristics, creation, distinctions, and termination of joint tenancy and tenancy in common. Here's a possible format:

Essay Format: Co-Ownership in Land

I. Introduction

  • Definition of Co-ownership: Begin by defining co-ownership as the simultaneous ownership of land by two or more persons.

  • Types of Co-ownership: Briefly introduce the two main types: Joint Tenancy and Tenancy in Common.

  • Thesis Statement: State the essay's purpose—e.g., to explore the characteristics, legal requirements, distinctions, and methods of severance associated with joint tenancy and tenancy in common, highlighting their practical implications in land law.

II. Joint Tenancy: Characteristics and Creation

  • Definition: Define joint tenancy, emphasizing the absence of 'words of severance' and the concept of joint tenants being viewed as a single owner.

  • Key Characteristics:

    • One title.

    • Each tenant holds the whole estate, with no exclusive possession of any part.

    • The crucial principle: Right of Survivorship (ius accrescendi) – explain how an interest automatically accrues to surviving tenants upon death, preventing testamentary disposition (referencing Panton v Roulstone).

  • The Four Unities (Essential for Joint Tenancy): Discuss each unity in detail:

    • Unity of Possession: Explain shared entitlement to the whole land and lack of exclusive rights over any part (referencing Meyer v Riddick).

    • Unity of Interest: All tenants must hold the identical type, duration, and nature of interest (referencing Singh v Mortimer).

    • Unity of Title: Interests must derive from the same document.

    • Unity of Time: Interests must vest simultaneously (referencing Gilbert Kodilyne).

  • Creation: How a joint tenancy is created when land is conveyed without words indicating separate shares.

III. Tenancy in Common: Characteristics and Creation

  • Definition: Define tenancy in common, highlighting that only unity of possession exists.

  • Key Characteristics:

    • No right of survivorship.

    • Holders possess distinct, undivided shares (e.g., one-half, one-third).

    • Distinct shares can pass under a will or intestacy.

  • Creation:

    • Land granted with 'words of severance' (e.g., 'to A and B equally,' 'to be divided amongst').

    • Equitable Presumption: Discuss how equity favors a tenancy in common, especially in situations like unequal contributions to purchase money, loans on mortgage, partnership assets, or property acquired for individual business purposes.

    • Severed joint tenancies.

IV. Distinction Between Joint Tenancy and Tenancy in Common

  • Table/Comparative Analysis: Clearly distinguish the two forms based on:

    • Right of survivorship (present in JT, absent in TIC).

    • Requirement of unities (four for JT, only possession for TIC).

    • Nature of shares (whole for JT, distinct for TIC).

    • Disposition upon death.

V. Severance of a Joint Tenancy

  • Definition: Explain severance as the conversion of a joint tenancy into a tenancy in common, often done to avoid the right of survivorship.

  • Methods of Severance (as per Williams v Hensman and others):

    • Act of a Joint Tenant Operating on Their Share: Explain alienation (total or partial, e.g., mortgage, bankruptcy) and commencement of litigation (referencing Re Draper’s Conveyance).

    • Mutual Agreement: Discuss how an agreement to alienate or divide property causes severance, even without formal enforceability (referencing Burgess v Rawnsley).

    • Course of Dealing (Mutual Conduct): Explain that actions reflecting an intention to treat interests as a tenancy in common can suffice, even without express agreement.

    • Other Methods: Briefly mention acquisition of additional interests or severance through written notice (referencing Kinch v Bullard).

VI. Partition

  • Definition: Describe partition as a process where co-owners divide property into distinct parcels, ending co-ownership.

  • Statutory Provisions: Mention the right to compel partition under legislation like the Partition Acts, and the court's power to decree a sale instead of physical division.

VII. Conclusion

  • Summary: Briefly recap the essential differences and characteristics of joint tenancy and tenancy in common, and the significance of severance.

  • Final Thought: Emphasize the importance of carefully considering the form of co-ownership and its implications for property rights and inheritance.

This format allows for a comprehensive discussion, drawing directly from the information provided in your notes.