Co-Ownership

Co-Ownership

When more than 1 owner there is equity
1. Always a legal and beneficial owner, can be same person or 2 separate people
  1. Statutory trusts are now trusts of land (Post 1995) TLATA 1996 Important legislation for this
    1. So now, as soon as more than 1 owner in law or equity, then a trust & TLATA applies
    2. Trusts can be created expressly - must be evidenced in writing
      1. No formalities except intention must be evidenced, must be clear that a trusts been created
        Subject matter & object of the trust must be sufficiently certain
        Court may still find an implied trust if not created expressly
    3. Or Impliedly - no requirement for writing
      1. Resulting - usually where there is a joint contribution to the purchase, equity will imply a RT matching %'s of the contribution
      2. Constructive - Much wider than RT, much more creative. Can arise by parties conduct and intentions, ie spending money making improvements
        Not limited to who paid what in monetary terms
2 forms of co-ownership
1. Joint tenancy
  1. Property owned by tenants as 1 unit, no individual shares, % contribution doesn't matter, rights of survivorship, as 1 dies unit gets smaller
    1. JT's cannot give/pass on their interest as do not have a share which is theirs alone to give away
  2. To create a JT - 4 Unities must be present. PITT
    1. P - Possession. All owners have equal rights to use the estate/lease
      1. Each JT owns the whole collectively, must show that each JT intends to share use of all the property
        One co-owner cannot evict another
    2. I - Interest. All JT's hold the same estate
      1. All JT's hold he same estate (cannot be that one signs for 10 years and another 12 years)
        All JT's must join in a sale and rents and profits divided equally
        No JT if interests are different - ie free and leasehold
    3. T - Title. Each JT must acquire title from the same act or from the same document
    4. T - Time. The interest of each owner must vest at the same time.
      1. All must be conferred at same point in time and as a unit (not applicable to gifts by will)
        Under JT's, right to survivorship, last one alive gets everything. If 2 or more die at same time, assumed eldest died first
    5. Express creation of JT occurs when grant expressly provides that is how the land is to be held
      1. JT impliedly created when grant is silent. Presumption is raised that new owners will own the property beneficially as JT's
        Rationale is that equity follows the law - PETTIT v PETTIT 1970
        Presumption could be rebutted, but quite difficult to do!
2. TIC on next page

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