Co-ownership

Co-ownership

Joint Tenancy: All tenants entitled to the whole of the property
1. 4 unities - Possession, Interest, Title, Time
  1. Possession = indivisibility
  2. Interest = same in extent, nature, and duration
  3. Time = interest of each JT must vest at the same time
2. Ius accrescendi - the concept of survivorship
3. Commorientes Rule - the younger survives the elder
  1. LPA1925 s184
4. Severance
  1. Tenancy in Common
    1. Undivided share
    2. No right of survivorship
    3. Only unity of possession required
    4. Cannot be created in law - LPA 1925 s1(6)
  2. Effect of severance
    1. TCs in equity; always JTs in law
  3. Methods of Severance
    1. Statutory
      1. LPA 1925 s36(2)
        Unilateral notice
        Written notice
        Re Draper's Conveyance - Husband and wife were JTs of matrimonial home under an express trust. They divorced, and wife began legal proceedings which sought order that home be sold an interest divided. Husband then died without a will before home was sold. Held, severance had occurred by issuing summons to the court since it constituted notice under s36(2). Hence survivorship did not occur and wife did not get the house; only her share.
        Burgess v Rawnsley - I do not see why the commencement of legal proceedings by writ or originating summons or the swearing of an affidavit in those proceedings, should not in appropriate circumstances constitute notice in writing within the meaning of 36(2).’
        Intention to Sever
        Gore and Snell v Carpenter - H and W JTs of a house in equity. They agreed to divorce, and H’s solicitor was tasked with drawing an agreement for their separation. The draft included a clause which severed JT of matrimonial home. Draft agreed in principle but was never finalised – couldn’t agree on Money. Held, Husband advised to serve a severance notice to wife. Husband refused, saying wife might see it as a hostile act. No severance.
        intention must be for notice to effect immediate severance
        Harris v Goddard - H and W joint tenants in equity. The wife left husband and sought divorce. The petition for divorce asked for a a fair order on interests. H involved in car crash, badly injured and died one month later. QN: Does petition for divorce = immediate severance of tenancy?. No, It was simply asking for court to award variation of trust. It was not showing an immediate intention to sever.
        Effective service of the written notice
        LPA 1925, s196(3)
        Kinch v Bullard - H and W JTs of matrimonial home. Wife filed for divorce; sent a notice of severance with first class stamp. Then H suffered a major heart attack. Whilst recovering in hospital, postman delivered wife’s letter to the house. wife felt horribly guilty and destroyed it. She said she changed her mind and no longer wished to sever JT. H dies, W then dies. Held, if it was delivered to that address as last-known abode then notice effectively served.
    2. Common law
      1. Williams v Hensman
        Act operating on a JT's share
        Corin v Patton - A statement of intention, without more, does not affect the unity of title.’
        Unilateral declaration of intention to sever? Law not entirely clear on this point. General view is that it cannot. A mere declaration that has not been communicated to other JTs cannot of itself sever the JT. Why? It would undermine statutory severance in LPA s36(2). Also mock general requirement for clear conveyancing.
        Mutual Agreement
        Burgess v Rawnsley - Although no contract needed, you need an agreement. Inconclusive negotiations as to ownership of house will not come under Hensman II. In HoL, they said it had occurred because agreement has been reached. 'The significance of an agreement is not that it binds the parties; but that it serves as an indication of a common intention to sever.’
        Mutual Conduct
        McDowell v Hirschfield Lipson & Rumney and Smith (inconclusive negos as to ownership) - A clear mutual intention to sever based upon inconclusive negotiations (just like burgess) will be difficult to establish. Court said no, severance does not inevitably flow from correspondences from solicitors. Best authority for inconclusive negotiation
        Gore and Snell v Carpenter - ‘A course of dealing is where over the years the parties have dealt with their interests in the property on the footing that they are interests in common and are not as joint.’
        Greenfield v Greenfield (physical division of land by JTs)- ‘A course of dealing is where over the years the parties have dealt with their interests in the property on the footing that they are interests in common and are not as joint.’
  4. Forfeiture
    1. Cleaver v Mutual Reserve Fund Life Association - ...no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.
    2. Manslaughter
      1. Gray v Barr - ...guilty of deliberate, intentional and unlawful violence or threats of violence.’
      2. Dunbar v Plant - . The 2 JTs had entered into a pact to commit suicide together, simply tragic that one had died and one survived. court granted compassionate relief from forfeiture. it could apply even where JT has not threatened violence. The interest was severed where joint tenant aided and abetted the other JT’s suicide.
    3. Granting relief from Forfeiture: Forfeiture Act 1982, s2(1)
      1. Re K (Deceased) - . In Re K, the wife shot the husband with a shotgun. At trial, it was revealed that wife had suffered serious domestic violence at hands of husband
      2. Rasmanis v Jurewitsch - The operation of forfeiture obvious where there are only 2 JTs. Ie A kills C. then court will sever C’s interest to C’s successor, D. But instead of it actually being split between A and B, we are now treating B , the innocent party, as similar to A the killer. How to solve?
5. Cannot sever JT at law - LPA 1925 s36(2)
6. Maximum of 4 legal co-owners - Trustee Act 1925 s34(2)
General Presumption: JT at law, JT at equity. When does equity not follow the law?
1. Words of severance
  1. 'equally' 'to be divided between two' 'among'
  2. Other reasons: malayan credit ltd v Jack Chia MPH Ltd
2. Contribution to purchase px in unequal proportions
3. Commercial situations

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	Criado por tystania mais de 10 anos atrás