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Flashcards by Robin Pearce, updated more than 1 year ago
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Created by Robin Pearce
over 9 years ago
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| Question | Answer |
| What is co-ownership | Where two or more people are entitled to possess and enjoy property at the same time. |
| Define Joint tenancy | Co-owners are seen together as a single legal entity holding the whole of the property as one single owner with no separate shares |
| Define Tenancy in common | Co-owners hold a distinct, individual although as yet undivided share in the property. The share often represents the the proportion initially contributed |
| What do joint tenents require to exist? | The four unities |
| Which case established the 4 unities? | AG Securities v Vaughan |
| What are the 4 unities | The unity of: - 1. Possession 2. Interest 3. Time 4. Title |
| What is the unity of possession? | Each joint tenant is entitled to physical possession of the whole of the land. If a single property is divided so that A and B own separate parts, there is no co-ownership. |
| What is the unity of Interest? | Each joint tenant’s interest in the property must be of the same nature, extent and duration because in theory the joint tenants together own one estate |
| What is the unity of Time? | Each joint tenant’s interest must vest at the same time |
| What is the unity of title? | Each joint tenant’s ownership must arise from the same document or the same act |
| Which 1 of the 4 unities must a tenancy in common have? | Unity of possession although others may be present |
| What is the right of survivorship? | When a joint tenant dies they have no 'share' to pass through their will. Instead the co-owned estate 'survives' to the remaining joints tenants. Through this process the last remaining joint tenent will become the sole owner. |
| what happens when a tenent in common dies? | Their 'share' will pass in accordance with their will. |
| There are two types of ownership under a trsut, what are they? | Legal and equitable |
| How many people can be the trustee of the property? | The first 4 over 18 on the conveyance will be the trustees. The only way legal title can be held is as a joint tenancy |
| What is the equitable title? | The value and substance of owning a property comes from the equitable title. |
| How can en equitable title be held? | As either a joint tenency or a tenency in common |
| Which form of ownership can be severed? | You cannot sever the joint tenancy at law s. 1(6) and s. 36(2) LPA 1925. You can only sever the joint tenancy in equity to create a tenancy in common |
| Why would you want to sever a joint tenancy? | The main reason would be to escape the operation of the right of survivorship. |
| How do you sever a joint tenancy? 5 ways | Contained in s. 36(2) LPA 1925 1. Written notice 2. an act operating on your own share 3. mutual agreement 4. mutual conduct 5. homicide |
| Case which recognised those 5 ways of severing as being effective? | Williams v Hensman |
| When can severence be done? | It must be done during the lifetime of the severing tenant. This is why you cannot sever by will as a will doesn't take effect until death - Re Caines |
| Does severence affect the legal title? | A successful severence will not effect the legal title at all |
| What happens when a severing tenant is also a joint tenant in law? | He will remain a joint owner in law until he removed himself from the legal title by releasing to other joint tenants (s. 36(2)), retiring as a trustee (ss 39 and 40 TA) or was removed from the trust (s 19 tolata) |
| Modes of Severence Where is severence by written notice set out? | s. 36(2) LPA 1925 |
| Statue that says that service can be effected by leaving the notice at the last known place or business or abode of the recipient. | s. 196(3) LPA 1925 |
| Case which says you can use ordinary post but you would still need to prove delivery? | Kinch v Bullard |
| statute which says that notice can be posted to the last known abode or business of the recipient using registered post. | s. 196(4) LPA 1925 Can also use recorded delivery under s. 1 Recorded Delivery Service Act 1962. In either case proof of postage is sufficient as long as the notice is not returned as undelivered |
| Case which says that as long as there is evidence that the notice was served in accordance with s.196 the joint tenancy is severed even if the other joint tenant(s) dont receive the notice | Kinch v Bullard |
| Case which states that the notice doesnt need to mention severence? | Re Draper’s Conveyance a summons for a court order for sale of the matrimonial home and equal division of the proceeds of sale was sufficient to effect severance as there was an intention to sever. |
| more recent case on severence? | Quigley v Masterson A joint tenant applied for legal proceedings, stating that she owned 50% and for the property to be divided between her and the other joint tenant. It was held this application should qualify as a notice of severance as it gave unambiguous notice of her desire to sever the joint tenancy |
| Case for severence at some time in the future is not effective? | Harris v Goddard |
| what is An act of a joint tenant ‘operating on his own share’ | occurs when a joint tenant unilaterally deals with his own interest in such a way as to sever it from the joint property |
| Example of a joint tenant ‘operating on his own share? | 1. sale of the joint tenants share 2. Mortgate of JT's share 3. Bankruptcy 4. Commencement of litigation |
| Case which confirms bankruptcy severs a JT? | Bedson v Bedson |
| case on severence through Mutual agreement | Davis v Smith correspondence between the two JT's showed that they had a common intention that the property be sold and the proceeds divided. It was clear that they had agreed to sever the joint tenancy |
| Mutual course of dealing | where the parties have acted on the assumption that each owns a share as tenant in common. In Burgess v Rawnsley, this was said to include “negotiations which, although not otherwise resulting in any agreement, indicate a common intention that the joint tenancy should be regarded as severed |
| Which act covers the powers and trustees of land in co-ownership? | TOLATA 1996 |
| Since when did trusts of land exist? | 1 Jan 1997 when TOLATA came into effect |
| What does TOLATA do? | determines the powers of trustees and beneficiaries in a trust of land |
| Where are the general powers of trustees set out in TOLATA? | s. 6 |
| Key features of TOLATA for trustees powers? | s. 6(1) - trustees have the powers of an absolute owner s. 6(2) - trustees can dispose of land by transfering it to the beneficiaries s. 6(3) - trustees can buy land for the estate s.6(5) - they must have regard to the interest of the Bens s.6(6) - trustees must act within the law |
| Where are the restrictions on a trustees powers set out in TOLATA? | s. 8(2) - if the trust instrument contains a requirement for the trustees to obtain consent for their actions under s.6 then the trustees must obtain consent. s. 8 - Allows settlors to place restrictions on trustees powers s.11 - trustees must consult with all beneficiaries over 18 |
| In terms of the duty in s.11 to consult how are decisions made? | By majority according to the value of the combined interest. |
| How do consents work within TOLATA? | A settlor under an express trust may require the trustees to obtain consents of Bens to exercise their powers - s.8(2) |
| What sorts of trust does the duty to consult in s.11(2) apply to? | express, implied and statutory trusts |
| What are the beneficiaries rights under TOLATA? | s. 11 - a right to be consulted s. 12 - rights of occupation |
| How does the Bens right of occupation work in s. 12 TOLATA? | S. 12 - The Bens can occupy with conditions if:- 1. the purpose of the trust includes making the land available for his occupation or 2. the land is held by the trustees to provide for the occupation of a Ben |
| What 2 requirements for the right of occupation to arise? | S. 12(2) 1. available for his occupation 2. suitable for his occupation |
| Where are the powers for the trustees to regulate the right to occupy contained? | S. 13 |
| What are the powers to regulate the right to occupy? | Where two or more Bens are entitled to occupy the trustees have the power to.. 1. if acting reasonably to exclude or restrict the entitlement of any 1 or more (but not all) of them; and 2. Compensation must be paid to any Ben who has been exclude by another Ben occupying |
| What conditions can a trustee attach to right of occupation under s.13? | can attach conditions to pay the outgoings and maintenance |
| What is the overriding condition of s. 13(7)? | that no person already in occupation should be prevented from continuing to occupy except by that person’s consent, or with the court’s approval |
| Which section of TOLATA deals with disputes? | SS. 14 & 15 14 - anyone with an interest can apply to the court to settle disputes 15 - The list of factors the courts can consider in resolving disputes |
| What can an order under s.14 do? | 1. order a sale 2. prevent a sale |
| doctrine of continuing purpose? | Before TOLATA in the event of a dispute the default position was to order sale. However this became unhelpful so to get around this the courts wouldn't order sale if the purpose of a trust was to provide a family home and it was still being used for that purpose. |
| Matters court will have regard to in considering a dispute? | 1. Settlors intentions 2. the purpose the property is held 3. the welfare of any minor 4. the interests of any secured creditor |
| What is the s.15(3) TOLATA addittion | Dispute over any power under s. 6 other than s.6(2) the court is also required to take into account the circumstances and wishes of any Ben |
| What happens when someone is made bankrupt? | Their trustee in bankruptcy takes their beneficial interest and can apply to the court for an order under s.14 TOLATA |
| What happens if a trustee in bankruptcy applies for a s.14 TOLATA order? | 1. The Ben interest re-vests int he bankrupt after 3 years 2. the s.15 criteria do not apply and the court is directed to s.335a Insolvency act |
| What does the insolvancy act require of the court? | To consider: - 1. the conduct of the spouse in contributing to the bankruptcy 2. the financial resources and needs of the spouse 3. the needs of any children This can allow the court to postpone sale for 1 year |
| What does the insolvancy act require of the court after a 1 year postponement? | the court must assume that the interests of creditors outweigh all other considerations unless there are exceptional circumstances - |
| What are Exceptional circumstances? | Very narrow! the loss of the family home and disruption to the children’s schooling is unlikely to be sufficient - Re Citro |
| Case where exceptional hardship has been found? | Judd v Brown - indef postponement due to cancer treatment Re Bailey - House specially adapted to the needs of a very disabled child |
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