Made Simple: Co-ownership

Made Simple: Co-ownership image Made Simple: Co-ownership
Published 29 April

Joint tenancy: where more than one person holds the legal or beneficial title of the property and all people are entitled to the whole of the co-owned land, the ‘right of survivorship’ operates between them and the ‘four unities are present. Four Unities (AG Securities): - Unity of possession: all joint tenants are entitled to the whole of the co-owned land - Unity of interest: same interest in extent, nature, and duration in the land. - Unity of title: same document or alternatively where they have acquired title under adverse possession. - Unity of time: interest vest at the same time. Tenancy in common: the unity of possession still needs to be present but the others do not need to be present. A tenant in common is able to leave his share in the property in his will and shares between tenants in common may be unequal. The principle of survivorship does not operate. Survivorship: on the death of any one of the joint tenants the entire co-owned estate ‘survives to’ the remaining joint tenant or tenants. It is not permitted therefore to leave your share in your will in case of joint tenancies, but if it is, for example, a couple and they leave in their will the property to the same person then it is permissible. Dennis v MacDonald: a wife was forced to leave the property she jointly owned with her husband because of his violent behavior. The court held that he should pay rent to her since he had remained in occupation (no exclusion from the land in joint tenancies) Law of Property Act 1925 s 1(6): it is impossible for a tenancy in common of the legal title; the legal estate must always be jointly owned. Law of Property Act 1925 s 36(2): a joint tenancy of the legal title cannot be severed so there can never be a tenancy in common of the legal title. Law of Property Act 1925 s 34(2): a maximum of 4 people can be joint tenants of the legal title but there are no restrictions as to the number of joint tenants in equity. Joint tenancy VS Tenancy in common: The intentions of the parties and the words used in their agreement may indicate whether it is a joint tenancy or a tenancy in common. In Goodman v Gallant they expressly stated in their agreement that they would be joint tenants thus any other factors or unequal contributions to the purchase price did not change the nature of their joint tenancy. Generally, if they do not contribute equally to the purchase price, a tenancy in common is implied. Where money is loaned(mortgage) by two or more mortgagees in the interest that they take in the property will be held as tenants in common, even though they have taken the legal title as joint tenants. In business partnerships, the general presumption is that a tenancy in common was intended. Malayan Credit Ltd v Jack Chia-MPH: it was a tenancy in common because they contributed unequally to the purchase price, the grant consists of security for a loan and it was partnership property. Severance: joint tenants can effectively separate their equitable interest from that of the other joint tenants by means of severance. If there are 3 joint tenants and one of them wants to sever his interest, then the other two will remain joint tenants despite the third one who will be a tenant in common. Bedson v Bedson: where a tenant severs his equitable share, he will be entitled to a proportionate share of the property depending on the number of the joint tenants. There can be no severance of the legal estate. Methods of severance: Written notice: Law of Property Act 1925 s 36(2): written notice of severance must be given to all the other joint tenants, it does not need to be signed or be in a particular form and it is an entirely unilateral action that does not need the consent of the others. If the notice is to be sent by post then: Law of Property Act 1925 s 196(3) – where an ordinary post is used then the notice will be properly served if it is left at one of the two places; either the last place where the joint tenant was living or the last known business address of the joint tenant. If it is a registered post then section 196(4) applies and states that it should be posted to the last known business or home address of the joint tenant. Kinch v Bullard: wife decided to sever tenancy but then the husband suffered a heart attack and while he was at the hospital she destroyed the letter which was delivered to their house. Since it was delivered to his last place of stay then it was valid. Although Neuberger J suggested that if the joint tenant had expressly told the other joint tenant/s that he no longer wished to sever the joint tenancy before the letter arrived then it would be withdrawal of the severance and the joint tenancy would remain as such. Gore & Snell v Carpenter: the intention to sever must be immediate and not for some time in the future. Harris v Goddard: wife and husband would get divorced and wife prepared a statement which said ‘for such order with regard to their property as may be just. The COA held that this was not an immediate intention to sever thus survivorship operated when the husband died in a car crash. Re Draper’s Conveyance: no specific form of severance is requested as long as it is in writing and shows an immediate desire to sever. Williams v Hensman: Severance by conduct: an act of any one of the persons interested operating upon his share. The most obvious example would be the sale of one’s share. Re Draper’s Conveyance: litigation concerning a joint tenancy prior to the court’s order for severance will be considered as an effective severance by conduct. First National Securities v Hegerty: husband fraudulently forged his wife’s signature in order to apply for a mortgage, thus it was held that the husband’s share was the only one subject to the mortgage as severance had operated. Bankruptcy: when one joint tenant is declared bankrupt his interest will vest in his trustee in bankruptcy. Red Palmer: under the Insolvency Act 1986 it was held that an insolvency order does not take effect until there has been an order of bankruptcy from the court. If the debtor who is a joint tenant dies without such an order being made, the whole of the property will vest under the doctrine of survivorship in the other joint tenant. Severance by mutual agreement: there must be some contact and measure of agreement between the parties, thus it is not a unilateral act, there needs to be consent. Burgess v Rawnsley: R in a relationship with H and they decided to live together. R then agreed orally to sell her share to H because the relationship ended. However, she changed her mind and asked for more money. H died before the negotiations were finished and the court would have to consider whether there was severance. Lord Denning stated that despite the fact that there was not any firm agreement; neither a contract in writing which could be specifically enforceable, severance had taken place because of the intention by both parties that the property should be held in common and not jointly. Nielson-Jones v Fedden: the couple separated and the husband was entitled to sell the property. He died before carrying out this task and the court held that there was no severance since the intention was to sell on behalf of both parties and not to sever. Severance by mutual conduct: there must be a course of conduct that shows that the parties intended to treat their shares as separate and distinct. Mutual will draft with identical terms and leaving the property to each other to a third party will be enough to sever a joint tenancy. Greenfield v Greenfield: there was a physical division of a property owned by two brothers and when one of the brothers died it was held that despite the physical division the property was still jointly owned thus survivorship operated. When one of the trustees wants to sell the property and the other one does not want to the Trusts of Land and Appointments of Trustees Act 1996 gives the power of discretion to the court to decide whether an order for sale is relevant and may be exercised: Section 14: Applications for order. (1)Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the court for an order under this section. (2)On an application for an order under this section the court may make any such order— (a) Relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain the consent of, or to consult, any person in connection with the exercise of any of their functions), or (b)Declaring the nature or extent of a person’s interest in property subject to the trust, as the court thinks fit. (3) The court may not under this section make any order as to the appointment or removal of trustees. (4) The powers conferred on the court by this section are exercisable on an application whether it is made before or after the commencement of this Act. The application may be made by any person who has an interest in the land but not by the trustee in bankruptcy as this is governed by another Act. In order for the court to decide whether to order sale or not Section 15 of the Act applies: Matters relevant in determining applications. The matters to which the court is to have regard in determining an application for an order under section 14 include— - The intentions of the person or persons (if any) who created the trust, - The purposes for which the property subject to the trust is held, - The welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home, and - The interests of any secured creditor of any beneficiary. Jones v Challenger: husband and wife but no children at home - held purpose was a marital home but could no longer use this purpose as marriage breakdown Bank of Ireland v Bell: creditors are first amongst equals even though the purpose of family home still effective creditor recompense was a 'powerful consideration' (the child was nearly 18 – less significant reason, the older the child the less significant) First National Bank v Achampong: Sale ordered to appease creditors even though wife, children, and grandchildren all living at the property. Putnam v Taylor: secured creditor gave priority despite failing health of husband. Edwards v Lloyds Bank TSB Plc: co-owner could not afford alternative housing (postponement for 5 years) case of necessity and personal interests took priority for a limited time In cases that the trustee in bankruptcy wants to apply for an order for sale then section 335A of the Insolvency Act 1986 applies. If the trustee in bankruptcy applies under s. 335A for sale of the home within the first year of bankruptcy – court has discretion – it might take into account: - Needs and resources of bankrupt’s spouse/partner - Needs of children - The extent to which spouse/partner contributed towards bankruptcy If the trustee in bankruptcy applies a year after the bankruptcy it is most likely that he will succeed unless exceptional circumstances apply: Re Holliday: Self-enforced bankruptcy was an exceptional circumstance as creditors likely to get their money back Re Citro: children’s education and loss of home but was not fundamental enough to be an exceptional circumstance Re Ravel: mental illness -1 year postponement, property remain unsold because she was diagnosed with schizophrenia. Re Bremner: bankrupt dying and had 6 months left to live so sale postponed until 3 months after the death to allow the elderly spouse to care for him Melina Tsangarides Read also: Made Simple: Adverse Possession

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