How to Answer a Co-Ownership question in Land Law
A co-ownership question will always ask you two things:
· Trace the devolution of the legal and equitable interests
· Advise the remaining parties who are usually in a dispute if they can sell or occupy the land.
After 1996 = s.1 TOLATA, trust in land.
2 important differences: - joint tenant - tenancy in common.
*Joint tenants are what you will usually start with. This is the type of tenants that own the land jointly and equally (no one can later be added to this list).
For there to be joint tenants you must have the four unities:
1. Unity of time (Same time)
2. Unity of title (e.g. wills/sales/transfers)
3. Unity of possession (e.g. You can’t say I own the 1st floor)
4. Unity of interest (e.g. if the land is leased out they would split the rent equally no one person would get more of a share.)
· The first four people named hold the estate on trust for the remaining parties.
NB:// Cannot be a trustee under 18, thus it will be the next person named.
*Tenants in common, these are those with an equitable interest (Joint tenancy automatically gives you an express equitable interest – it is those entering the q later who join this list).
Events to look out for:
1) Death – Survivorship applies, cannot pass JT in will. The remaining share the %.
2) Mortgage – Cannot sever legal estate, change to T in C, those who mortgage their share will share T in C with bank.
3) Sell to a 3rd party – Cannot sever legal estate, change in T in C, sellers equitable % goes to buyer.
4) Buyer dies – Only change to T in C, those left real property to get equitable %.
5) Mutual agreement – e.g. to change JT’s. Must be between all parties.
6) Written notice?
Usually 3 scenarios:
1. Some partners want to sell
2. Bank/Mortgage wants to sell
3. Someone wants to stop a sale
In all scenarios:
Have to have at least 2 parties’ makings the sale.
If a sale went through the concept of overreaching would occur – purchasers to take the land free.
Actions under TLATA:
· Section 6 (5): Trustees have to have regards to the interests of beneficiaries
· Section 11: consult the beneficiaries, and give effect to majority (re to sale)
· Section 14: Right to make an application to the court
- This can be to force sale - Or for postponement of sale.
· Section 15: The court will look at the 5 factors under the act:
1. Intention of creator of trust
2. Purpose for which the property is held
3. Welfare of minors in occupation
4. Interests of secured creditors
5. Wishes of adult beneficiaries in occupation.
1. Oke v Rideout: Sec 15 factors are important but not exclusive
2. TSB v. Marshall: Creditors preferred unless exceptional circumstances
3. Achampong: Creditors preferred even when there was a disabled beneficiary in occupation
4. Bank of Ireleand v. Bell: Creditors should not be kept from what is rightfully theirs.
5. Chun v. Ho: Family interests are preferred where minor children are involved.