Topic 1 (Lecture Slides) - Co-ownership of Property In England and Wales.ppt

Lecture slides on co-ownership

1. 1
CO-OWNERSHIP OF PROPERTY
IN ENGLAND & WALES
HARMAHINDER SINGH

2. 2
Co-Ownership
Co-ownership describes a form of ownership in which 2 or
more persons are simultaneously entitled in possession to
the enjoyment of an interest in the same propertywhether
for commercial or residential purposes -concurrent
ownership
Concurrent Ownership of Interest on Land
*Compare with concept of Successive Ownership

3. 3
Co-Ownership / Concurrent Ownership Disputes
Core Party Disputes Disputes between core parties
with Third Parties
This chapter will focus on the
disputes between core parties
Legal title in one name, non legal owner
is claiming beneficial share
Legal title in joint names and there is a
dispute in relation to the beneficial share
Disputes between parties who
who are concurrently benefiting
(in possession)
Disputes between party/ieswho
who are concurrently benefiting
(in possession) AND third parties
who are not benefiting from the
possession (egbanks, purchasers
etc)

4. 4
Tenancy in Common
Forms of Co-ownership –2 forms of ‘Sharing’
Legal
Ownership
Equitable
Ownership
Legal Ownership is
alwaysheld as
a Joint Tenancy
S.1(6)LPA25
How are Legal and Equitable Ownership ‘shared’
Joint Tenancy
Equitable Ownership can
be held as
Joint Tenancy Tenancy in
Common
OR

5. 5
RESOLVING CO-OWNERSHIP DISPUTES
Trusts of Land and
Appointment of
Trustees Act 1996
Insolvency
Act 1986
Matrimonial
Causes Act
1973
Civil Partnership
Act 2004
IMPORTANT
LEGISLATIONS
Family Law
Act 1996
Governs relationship between Legal and Equitable Owners where
Relationship between the both fall within the purview of the Act.

6. 6
Came into force on 1.1.1997 and enacted subsequent to the
Law Commission Report No 181
Applies to co-ownership both before and after that date
where trusts are involved
‘Trust of land’ concept introduced to replace ‘trust of sale’
A trust where the subject matter is land, however worded
would be deemed as a trust of land
TOLATA 1996

7. 7
S 1 TLATA 1996
S 1(2)
(a)
is to any description trust
(whether express, implied,
resulting or constructive)
including a trust for sale
and a bare trust
S 1(1)
(a)
“Trust of land” means…
any trust of property
Which consists of or
includes land
(b)
Includes a trust created,
or arising, before the
commencement of this
Act
(b)
“Trustees of land”
Means Trustees of
a trust of land
What is a ‘Trust of land’ and Who are ‘Trustees of Land’ ?

8. 8
Absolute owner at
the initial stage
SETTLOR /
TESTATOR -Property passed to
trustee to who gets
absolute title to hold
for beneficiaries
-Person with the legal
title
TRUSTEE
BENEFICIARY
Holds an equitable
interest in the property
but only an equitable
interest
•Trust is a “locking mechanism” to lock property
to “safety”
•It is one of the tools that Equity uses in land
transactions
Primary Feature of TOLATA –S1 -Use of the Trust Device

9. 9
•2 main regimes of a trust used in land law
Express Trust
Trusts which are deliberately
and intentionally created by
a settlor / testator
Implied Trust
Trusts which are implied
by the courts in special
circumstances
Resulting Trusts
Constructive
Trusts

10. 10
The overriding policy aim in the LPA 1925and Trusts of Land
and Appointment of Trusts Act 1996 (TOLATA 1996)
was to use the trust device
(i) to make land more alienable
(ii)protection for equitable interest holders
*Concept of Trust For Sale changed to concept of Trust of Land*
1925 1996
Law of Property Act 1925
Trusts of Land & Appointment
Of Trustees Act 1996

11. 11
Whenever there is co-ownership, there is a ‘Trust of Land’
automatically implied to ‘govern’ the ownership between
the co-owners
There are always
legal and equitable
owners in co-owned
property
Legal owners hold
the property on
trust for the equitable
owners (including for themselves)
Legal owners are
Trustees and the
equitable owners
are beneficiaries

12. 12
•S 6 (1) TLATA 1996
‘For the purposes of exercising their functions as trustees,
the trustees of land have in relation to the land subject to
the trust all the powers of an absolute owner’
Powers of the Trustees
•S 6 (5) TLATA 1996
‘In exercising the power conferred by this section trustees
shall have regard to the rights of the beneficiaries’
Significant change from duty to sell (under the trust for sale)
-S 35 LPA 1925; and power to postpone sale(S 25 LPA 1925)

13. 13
Trustees’ consultation with beneficiaries
Trustees of land shall in the exercise of any
function relating to land subject to any trust
S 11(1) TLATA 1996
(a)
So far as practicable, consult
the beneficiaries of full age
and beneficially entitled to an
interest in possession in the
land
(b)
So for as consistent with the
general interest of the trust,
give effect to the wishes of
those beneficiaries or
(in case of dispute) the majority
(according to the value of their
combined interest)
S 22 TLATA 1996
-“beneficiary” means any person who under the trust has
an interest in the property subject to the trust

14. 14
•S 12 TLATA 1996
(2)
Subsection (1) does not
confer on the beneficiary
a right to occupy the land
If it is either unavailable
Or unsuitable for occupation
(1)
A beneficiary who is
beneficially entitled to
an interest in possession
…is entitled by reason of
his interest to occupy the
land at any time
Beneficiary’s Right to occupy
•S 13 TLATA 1996
-Trustees have a right “to exclude or restrict the entitlement
of any one or more (but not all) of” the beneficiaries –S 13(1)
-Matters that trustees may take into account when excluding
-S 13(4), S 15(2)
-Trustees may not unreasonably exclude any beneficiary
entitled to occupy the land –S 13(2)
-Reasonable conditions may be imposed on the occupying
beneficiaries –S 13(3), S 13(5)
(3)
This section is
subject to S 13

15. 15
________________________________________________________________________________________
ACQUISITION & QUANTIFICATION OF EQUITABLE OWNERSHIP
OF BENEFICIARIES UNDER A TRUST OF LAND
Legal title in one name, non legal owner
is claiming beneficial share
Legal title in joint names and there is a
dispute in relation to the beneficial share
2.If Land is formally conveyed to a person, he becomes
the legal owner and he/she is regarded as the equitable
owner as well. [i.e. Legal Owner is Trustee -S1(1)(b) TOLATA
and beneficiary -S22 TOLATA]
1.Legal Ownership in land is only acquired when a
conveyance is done by deed (where formalities
have been satisfied) –S52 LPA 1925
3.However, disputes can arise in the following situations
Issues Issue is only on quantification of EQI
Whether EQI is
acquired
If EQI acquired,
How is EQI quantified

16. 16
Legal title in one name, non legal owner
is claiming beneficial share
Legal title in joint names and there is a
dispute in relation to the beneficial share
Disputescan arise in the following situations
Issues Issue is only on quantification of EQI
Whether EQI is
acquired
If EQI acquired,
How is EQI quantified
ERIC JESSICA
Legal
Owner
Equitable
Owner
Equitable
Owner
ERIC JESSICA
Legal
Owner
Equitable
Owner
Equitable
Owner
Legal
Owner

17. 17
One of several methods can be used to show acquisition
of equitable interest for purposes of S1(1)(a) TOLATA
and S1(2)(a) TOLATA
Express Trust
Resulting Trust
Constructive Trust
1
2
3
ACQUISITION OF EQUITABLE OWNERSHIP

18. 18
1.An ET will arise where one person expresses an intention
to convey property in the hands of the trustees (Legal owners)
to hold for the benefit of the beneficiaries
2.For an express trust of land to be valid, it must meet the formal
requirements of the LPA 1925 –S53(1)(b) –parties must evidence
their intention to create an express trust of land in writing
Express Trust1
ERIC
JESSICA
Example
Eric formally creates an
Express trust (intervivosor
Testamentary) for Red House
for Jessica to hold for their
Daughter Megan.
MEGAN
Legal Owner
Equitable Owner
Settlor / Testator
(if there is will)

19. 19
1.An RT will arise where one person pays all or part
of the purchase price but the property is conveyed
into the name of the other
2.The law presumes that the person with the legal
title will hold the property on trust for the person
who made the contribution
3.It is a presumption that the equitable title is
intentionally retained by the party who made the
contribution (basis of a resulting trust)
Resulting Trust
4.The law looks at the circumstances and concludes
that the legal owner of the land does not own
absolutely for himself selves but owns for himself
AND others
5.The ownership is then said to result back to the
person providing the money, rather than remaining
with the person who owns the property
2

20. 20
Applicability of Resulting Trusts
ERIC JESSICA
Example
Eric and Jessica jointly
Contribute to purchase
Price of Red Shop for biz
but property is placed in
Jessica’s sole name as
registered owner.
•Stack v Dowden (2007)
RT is inapplicable to family home disputes
and that CT should be the way forward (for
family home disputes)
•Laskarv Laskar(2008)
Disputes over shares in commercial property
/property bought as an investment will be
dealt with under traditional resulting trust
•Jones v Kernott (2011) SC
RT no longer had place for decisions in the
relation to family home situations

21. 21
A Gifts and Advancements
Q: What will amount to ‘alternative intention’ ?
When money is given with the intention of parting completely
with the equitable interest (no intention to retain equitable interest)
This may occur is situations where direct contribution etcis made
in circumstances of:
A Loans
With Improper motive
Limb 1
Direct contribution to purchase
price or agreement for
contribution to mortgage
payment at the point of purchase
Limb 2
Contribution made without
alternative intention
(presumption of RT rebutted if
There is alternative intention)
Test for a Resulting Trust to exist

22. 22
•Dyer v Dyer (1788)
There is presumption that if A has contributed money
to purchase price and property is place in the name of B,
the intention if A is to retain the beneficial interest and not
to give it away to B completely
•Bull v Bull (1955)
-X & Y buy property
-both contribute to the purchase price
-only X’s name of conveyance (X holds legal title)
-X tried to evict Y from the property
Held:Y’s direct contribution to the purchase price gives her an
equitable interest in the property in proportion to her contribution
under a resulting trust. X holds the property on trust of land for
himself and Y
Direct Contribution to the Purchase Price
•Halifax Building Society v Brown (1995)
A contribution to the deposit will suffice to give rise to
an interest
Test for RT –Limb 1 (Direct Contribution)

23. 23
•Cowcherv Cowcher(1975)
Where both parties agree at the onset that share the
mortgage payments, that would be sufficient to create interest
under RT
Contributions to Mortgage Payments
•Curley v Parkes (2004)
Contributions to Mortgage payments shifted to the claimant
some years after the purchase of property –Not sufficient to
create interest under RT
Household Expenses
•Burns v Burn (1984)
Unmarried couple lived in house for 19 yrsunder sole name of
the man. Lady looked after man and children, paid household exp
and bought household necessities (Man paid for mortgage)
Held: Lady did not have interest under RT

24. 24
This is a circumstance where the intention is that to depart with all
interest in the property and that there is an intention to the make a
gift or an advancement
It is actually a presumption which arises in specific circumstances
•Murlessv Franklin (1818)
if money is given from a father to a daughter there will be a
presumption of that this is an advancement for the daughter’s
benefit. The effect is then it shifts the burden on the father
to prove that it was not meant to be a gift
Gifts and Advancements
•McGrath v Wallis (1995)
This presumption may be refuted where the money had been
contributed to the purchase price and where occupation of it is
to be shared
Test for RT –Limb 2 (No alternative Intention)

25. 25
Where money is given on a loan to purchase a property, the ownership
in the property in deemed to be held by owners of the property.
•Halifax BS v Brown (1995)
When a married couple is given a loan from set of parents
to purchase a property, it is implied to be jointly owned
by the married couple and not to be held on resulting
trust for the parents
Loans
Where the motive of the transfer was some improper motive,
there will be no resulting trust in favourof the transferor.
•Tinsley v Miligan(1993)
Lesbian couple contributed towards home and M lied
to social welfare dept(fraud).
-RT held for M, lesser of two evils
Improper Motive
•Tribe v Tribe (1994)
Father transferred property to son in fear of financial
difficulty (illegal to evade creditors)
-RT held for Father

26. 26
1.A CT arises after the purchase and may be triggered
by various kinds of conduct
2.A CT arises whenever the circumstances are such
that it would be unconscionable for the owner of the
property to assert his own beneficial interest in the
property and deny the beneficial interest of the other
•Paragon Finance v D.B. Thakerar& Co (1999)
Constructive Trust
3.The equitable outcome which the constructive trust
aims to prevent, occurs only where an owner of the
property, by his words or conduct has induced the
claimant beneficiary to act to her own detriment in the
reasonable belief that by so acting she was acquiring a
beneficial interest in the land
•Gissing V Gissing (1971)
3

27. 27
•Lloyds Bank v Rosset (1990)
-H & W purchased a semi derelict house and renovated
if with H’s funds on mortgage
-H was the sole owner of the legal estate
-Both intended that renovation should be carried out and be
joint effort since house was inhabitable
-W supervised renovation espinterior deco
-H & W fell out, H left, loan not repaid, bank wanted to
take possession
-W claimed that she had beneficial interests
What are the circumstances in which a constructive trust
will arise ?
-The principles relevant to constructive trusts are
summarisedbyLord Bridgein Lloyds Bank v Rosset (1990)
Held (HOL):W did not have beneficial interest in the property,
the kind of work that she carried out was the kind that any wife
would carry out in similar circumstance

28. 28
Lord Bridgelaid down that the elements of a CT are:
Common Intention
between the parties
Detrimental Reliance
by NONlegal owner
Express
Agreement
Common
Intention
Implied
Common
Intention
1
2

29. 29
‘Express Common Intention’
This is a situation where there is an express agreement (the common intention)
between the legal owner and the non legal owner of the property.
•Lloyds Bank Plc v Rosset (1991)
“The first fundamental question which must always be resolved
is whether…there has at any time prior to acquisition, or exceptionally
at some later date, been any agreement, arrangement or understanding
reached between them that the property is to be shared beneficially…
based on evidence of express discussions between the partners, however
imperfectly remembered and however imprecise their terms may have
been”
•Eves v Eves (1975)
Couple lived together, title in man’s name, woman made no financial
contribution, evidence that she had contributed towards the renovations,
landscaping etc. Parties had discussed the possibility of woman getting a
share in the property and man had told her that she was too young to
have property in her name
HELD:Woman’s portion given to her on CT

30. 30
•Grant v Edwards (1986)
-Man did not enter woman’s name on register because she in the midst
of the first divorce
HELD:NourseLJgranted rights to the woman because there was clear
evidence of discussion to share rights in the property
•Otway v Gibbs (2001)
-Agreement must relate to the sharing of ownership, not simply to merely
living together or “looking after” the non legal owner
•Oxley v Hiscock (2005)
-similar facts toGrant
HELD: Once an agreement that common intention exist has been
established and there is detrimental reliance, a CT will arise

31. 31
‘Implied Common Intention’
This is a situation where there is no evidence of an express common
intention, the court may infer a common intention to share the beneficial
ownershipof the home -inferred from the conduct of the parties
Qn: What is the conduct that will be taken into account to infer
common intention?
1. Direct financial contribution to purchase price
•Lloyds Bank v Rosset (1990)
-Only direct contributions to purchase can be taken into account
to infer common intention

32. 32
•Stack v Dowden (2007) HOL
-Approach in Rossetwas too narrow
-Common intention to share the ownership of property
could be actual, inferred or imputed based on significant
contributions to the acquisition of the property in cash
or in kind
2. Other Contributions
-Provided non-exhaustive list of factors that may be
of relevance to the court in addition to the obvious factors
(like financial contributions)
-advise of discussions at the time of acquisition
-the reason why a declaration for the receipt of capital monies
included in the register
-Purpose for which the home was acquired
-how the purchase was financed
-nature of the parties’ relationship
-any children of parties
-how the parties arranged their finances
-how parties paid for outgoings, household expenses
-parties individual character and personality

33. 33
•Jones v Kernott (2011) SC
Common intention must be “deduced objectively from the
parties conduct” –Use the Stack v Dowden factors
•Capehornv Harris (2015) COA
Followed Stack v Dowden and Jones v Kernott
•Geary v Rankine (2012) COA
Followed Jones v Kernott

34. 34
Here the claimant must show that his position has
been altered because he relied on what the defendant
had told him (i.e. in reliance of the agreement –related
to doctrine of proprietary estoppel)
•Ungurianv Lesnoff(1990)
-W gave up her own home and opportunities and relying
on the expectation that she and her children would have a
secure home in London
-Sufficient detriment
Detrimental Reliance by non legal owner
•Eves v Eves
-Woman did substantial renovations and landscaping
-Sufficient detriment

35. 35
•Grant v Edwards (1986) COA
-Paying substantial housekeeping expenses and looking
after children -Significant contributions in money or money’s
worth could suffice
•James v Thomas (2008)
-Woman who worked unpaid for her husband’s business
acquired no interest in the home he owned before they
cohabited, even though the business paid for the
outgoings and renovations
•Re MelodiusCorporation (2001)
If detriment is motivated by love and emotions, then it
cannot amount to reliance
•Greasley v Cooke (1980)
-live-in-maid stop’ddemanding for wages
-lived on the premises, took care of a mentally ill person
-Sufficient detriment

36. 36
Where co-owners expressly
agree on how the equitable
Interests will be held i.e.
Expressly agreed whether as
JTs or TICs
Express Trust of Land
(Express Trust Situations)
For equitable Interests, Co-owners may choose to draw up an
“express trusts of land’” otherwise by default there will be a statutory
“implied trust of land”
Where how the equitable interests
will be held is implied from the
arrangement between the
parties i.e. implied whether
held as JTs or TICs
(subject to Common Law Rules)
Implied Trust of Land
(Resulting / Constructive Trust Situations)
•Roy v Roy (1996)
-words on the conveyance are to be regarded as conclusive
•Thames Guarantee Ltd v Campbell (1985)
-words will be conclusive if error was genuinely made
•Stack v Dowden (2007)
-now requirement to declare the interest in co-owned property at the
time of acquisition but parties may not do so for various reasons
Equitable Ownership can be held as Joint Tenancy or Tenancy in Common
QUANTIFICATION OF EQUITABLE OWNERSHIP

37. 37
ERIC
JESSICA
Both agree to place property in their
joint names
This means:
1. Legal ownership –expressly as JTs
(Legal Ownership can only be held as JTs)
2. Equitable Ownership –implied as JTs
as well
Both agree to place property in their
joint names as legal owners and share
“equally”
Scenario 1
Scenario 2
Eric & Jessica
Law = JT
Eric & Jessica
Eqt= JT
This means:
1. Legal Ownership –Expressly as JTs
(Legal Ownership can only be held as JTs)
2. Equitable Ownership –expressly equally
as TICs (50% equitable ownership each TIC)
Eric & Jessica
Law = JT
Jessica
Eqt= TIC
Eric
Eqt= TIC

38. 38
ERIC JESSICA
MEGANMARY
LegalOwnership
=JT
Equitable
Ownership
= JT / TIC
ERIC JESSICA MEGAN MARY
HARRY
LegalOwnership
=JT
Equitable
Ownership
= TIC
Equitable
Ownership
=JT / TIC
TIC

39. 39
To understand the difference between a joint tenancy (JT)
and a tenancy in common (TIC), one must take into account
several factors;
Nature of interest
of tenant
Right of
survivorship
Elements for
the creation
Severance
(Only for JTs)
1
2
3
4
General Rules of Quantification as JTs and TICs

40. 40
Each of the joint tenant ‘wholly entitled to the
entire interest in the property’
Joint Tenancy
•Burton v Camden LBC (2000)
Nature of interest of tenant
There is a right of survivorship
Property passes automatically to the remaining
tenants
Right of survivorship
-Legal ownership in land is always held on Joint
tenancy [S 1(6) LPA 1925] (legal joint tenancies)
-Joint tenancy can exist for an equitable interest in
the property (equitable joint tenancies)
JT1
JT2

41. 41
Unity of Possession
-The whole estate must
be held jointly
-Each tenant must be
equally entitled to posses
the property as a whole
-Any joint tenant cannot
exclude another JT
-Agreement of all JTs
must be obtained if there
is any dealing with the
property
For a joint tenancy to exist, the 4 unities must be
present–P, I , T , T
•Corrin v Patton (1990)
Elements for the creation
Unity of Interest
Each JT must have
the same interest in
extent, nature and
duration
Unity of Title
Each JT must acquire
their title in the same
conveyance or document
or through same adverse
possession
Unity of Time
The interest of all the
joint tenants must vest
at the same time
P
I
T
T
JT3

42. 42
Severance of joint tenancy can only occur in equity
and not at law (there can never be severance of
a legal estate in law)
It is process whereby an equitable joint tenancy is
converted in an equitable tenancy in common
The effect of severance is such that the interest in
equity will constitute separate shares (TIC)
Severance of Equitable joint tenancy JT4
Certain acts or events may cause an equitable
joint tenancy to be converted into a TIC
This process is known as severance
•Harris v Goddard (1983) Dillion LJ
“Severance is…the process of separating off the
share of a joint tenant, so that the concurrent
ownership will continue but the right of survivorship
will no longer apply. The parties will hold separate
shares as tenants in common”

43. 43
•S 36(2) LPA 1925
“…he shall give to the other joint tenants a
notice in writing of such desireordo such
acts or things as would, in the case of
personal estate, have been effectual to sever
tenancy in equity…”
Severance by
notice in writing
under statute
Common Law severance under
Williams v Hensman(1891)
RecognisedMethods of Severance
An act of the
Joint tenant
‘operating on his
own share’
Mutual
agreement
Mutual
conduct
2
1
3 4

44. 44
•S 196 LPA 1925
Severance is effective if there is evidence that the
notice was duly posted to all the joint tenants
Severance by notice in writing
Convenient and may be quite unilateral as no consent
is required to be obtained from other joint tenants
Notice is writing must be served on all existing joint
tenants
•Harris v Goddard (1983)
The intention to sever must be for severance to
take effect immediately and not at a future date
1

45. 45
•Gore & Snell v Carpenter (1990)
Mere negotiations were not sufficient for severance
•Re Draper’s Conveyance (1969)
A summons claiming sale of co-owned land was held
to constitute written notice of severance under
S 36(2) LPA 1925
•Re 88 Berkley Road (1971)
The letter of severance is effective even if it is not
received
•Kinchv Bullard (1999)
Letter of severance ‘once left at the last known
place of abode or business’ of the other joint
tenant was effective severance and cannot be
retracted
•Quigley v Masterson (2011) HC

46. 46
•Re Pavlou (A Bankrupt) 1993
•Re Dennis (A Bankrupt) 1995
The ‘act’ may be involuntary in nature
Methods of severance under Williams v Hensman
An act of a joint tenant ‘operating on his own share’
This is where one joint tenant does a unilateral act
which effects his own shares
e.g. sells his shares to 3
rd
parties, become a bankrupt,
mortgages the property, murders the other joint tenant
•First National Security v Hergarty (1986)
Forging of consents of other tenants may amount
to severance
•Gould v Kemp (1834)
Right of survivorship takes precedence over
testamentary dispositions (there will be no
severance where there is alienation via a will)
2

47. 47
•In the Estate of Hall (1914)
“a man shall not slay his benefactor and thereby take his
bounty”
•Schobeltv Barber (1966)
despite being stripped of any profit arising from his crime,
the killer is not otherwise subjected to penalty or forfeiture
in respect of his own interest under the joint tenancy
•Re K (1985)
Joint tenant who kills his fellow joint tenant cannot benefit
from the right of survivorship. The killer will hold the
victim’s share on trust for the victim’s family.
Note:Forfeiture Act 1892

48. 48
•Hunter v Babbage (1994)
The agreement need not be in writing (may be a mere
verbal negotiation which has been concluded)
Mutual agreement
This is where all the joint tenants agree mutually
that there should be a breakdown of the joint
tenancy into individual shares
In the absence of contrary intention, such severance
will result in a TIC
•Neilson-Jones v Fedden(1975)
Such an agreement must contemplate an intention to
sever and should not merely amount to an agreement
as to how the property is to be used
•Re McKee (1975)
Joint agreement between all the joint tenants to sever
3

49. 49
Mutual conduct
Any course of dealing or conduct between the
joint tenants which is sufficient to suggest that
the interests of all were mutually treated as
constituting a TIC (no right of survivorship)
Does not require an express act of severance and
only requires a consensus between the parties
•Quigley v Masterson (2011) HC
•Davis v Smith (2011) CA
4
•Burgess v Rawnsley(1975)
an oral agreement between the joint tenants for one to
buy the others shares, although not an enforceable contract
for lack of formalities, is sufficient conduct to suggest
severance

50. 50
Each of the TIC holds in distinct ‘divided’ portions
The size of the each TIC’s share is determined is a
fixed quantum (not necessarily equal)
Tenancy in common
Nature of interest of tenant
There is no right of survivorship
The fixed quantum of property does not pass merely
by reason of ending of any TIC’s rights
If one of the TIC’s dies (etc) his right will pass
under the law of succession (or based on his will)
Right of survivorship
-This is where property is co-owned in distinct
proportions although the property has not been
physically divided
-The key to distinguish JT and TIC lies in the words
used
TIC 1
TIC 2

51. 51
Situations where equity will presume a TIC to exist for
the co-ownership of equitable interest;
Ownership for multiple
purposes
Malayan Credit v Jack
Chia MPH Ltd (1986)
Contribution to
purchase price in
unequal shares
Bull v Bull (1955)
[c/f Stack v Dowden]
Commercial Partners /
Business Tenants
Lake v Craddock (1732)
Joint Mortgages
(equal or unequal
shares)
Steeds v Steeds
(1889)
For a TIC to exist, only unity of possession is required
•Bull v Bull (1955)
•AG Securities v Vaughan (1988)
Elements for the creationTIC 3

52. 52
In Resulting Trust Situations
•Arogundadev Arogundade(2005)
The amount of the contribution will decide on the amount quantum to be
claimed based on the value at hand
In Constructive Trust Situations
•Midland Bank v Cooke (1995)
-Parties intended to share equally
~ the business profits and losses
~ upbringing of the children
~ cost of maintenance of the home and its improvement for which W
also had contributed 7% to purchase price
HELD:there was common intention to share everything equally and W
got 50%. Courts will look at the entire course of the dealings btwn
the parties (direct and indirect contributions)
Common Law Quantification of JTs and TICs In
RT and CT Situations

53. 53
•Oxley v Hiscock (2004)
-Once common intention to share ownership has been
established, the court will decide on the shares as to
“what is fair in the whole course of the dealings”
(class of indirect contribution was widened)
•Stack v Dowden (2007) HL per Baroness Hale
Instead of looking at “what is fair”, the HOL used a “holistic”
approach. Look at the list of factors to quantify
•Jones v Kernott (2011) SC per Lady Hale, Lord Walker
Clarified position in Stack v Dowden
Contrary intention at time of
of purchase -parties did not
intend for EQI to be held on
JT at time of purchasing property
Subsequent change ofintention
due to change of circumstance,
parties no longer intended for
EQI to be held on JT
GR: Presumption is that EQI is held on JT (as per legal ownership)
UNLESSthere is evidence to rebut presumption of JT with either
If Yes to either above –UseOxley’s “what is fair in the whole
Course of dealings” approach –adapt broad approach to what this
means
OR

54. 54
•S 14 TLATA 1996
(2)
Orders that the courts can
make (mainly the beneficiaries
may ask the court to prevent
an overreaching sale of the
property)
(1)
Any trustee or beneficiary
may apply to the court for
any such order as the court
thinks fit “relating to the
exercise by the trustees of
any of their function”
Powers of the Court –Applications for Sale, etc
POWERS OF THE COURT UNDER TOLATA (FOR SALE)
Rodwayv Landy (2001) COA

55. 55
•S 15(1) TLATA 1996
Matters that the courts will consider when making
a S 14 Order:
(a)
The intentions of the
person(s) who created
the trust
Powers of the Court
(b)
The purpose for which
the property is held
(c)
The welfare of any minor
who occupies / might
reasonably be expected
to occupy any land…as
his home
(d)
The interest of any
secured creditor of
any beneficiary
-Re Buchanan-Wollaston’s
Conveyance (1939)
-Jones v Challenger (1961)
-Rodway v Landy (2001)
-First National Bank v Achampong
(2003)
-Bank of Home Mortgages v Bell
(2001)
-Abbey National plc v Moss
(1994)
-Mortgage Corporation v
Shaire(2001)

56. 56
•S 15 TLATA 1996
(2)
When exercising a right under
S 13(restrictions of the right
to occupy), the trustees must
consider the circumstances and
wishes of each beneficiary
(1)
Matters courts will take
into account when
grantingS 14order
Powers of the Court
(3)
When exercising the right
Any other application the
court is to have regard to
the circumstances and wishes
of each beneficiary of full age
with an interest in possession
(according to the value of the
combined interest)
-Bank of Home Mortgages v Bell
(2001)

57. 57
Insolvency Act 1986
This governs circumstances of co-ownership when one
of the co-owners are a bankrupt
Upon bankruptcy the property would vest automatically
in the trustee in bankruptcy
The TIB takes subject to the rights third parties and the
other co-owners of the property because he would have
to “get in, realiseand distribute” the bankrupt’s estate
for the benefit of his or her creditors

58. 58
•S 284(1) IA 1986–bankruptcy is a personal financial crisis
in its most extreme form, which leads to a severe dimunitionof
legal capacity for the individual who is the subject of a
bankruptcy order
•S 383 IA 1986–TIBs must possess and sell the property
within 3 years. Otherwise property would revert to the bankrupt
and creditors would loose a claim
•Chhokarv Chhokar(1984)(Per Cumming-Bruce LJ)–
the court “will usually pay great regard” to the voice of a trustee
in bankruptcy because he represents the “innocent creditor”

59. 59
S335A(3) IA 1986 –Circumstances of Sale after one year
Bankruptcy
Creditor’s interest will always be given first preference
and order for sale will usually be made unless there is
any exceptional circumstances
Factors to be taken into account by courts
•Re Citro(1991)(NourseLJ)
Bankrupt was depended upon by family and it was argued that refusal
to delay sale would cause hardship financially and interruption to the
children’s education.
Held: Where there are 2 competing claims i.e. innocent co-owner vs
TIB who is under the statutory duty to pay the creditors, the TIB has a
stronger claim ; loss of family home and disruption to family life was
the usual consequences of bankruptcy and not the exceptional
circumstances, being made homeless is not ‘exceptional’
S335A(2) IA 86 –court can made order for sale in
circumstances that it thinks just and reasonable having regard to
S335A(2)(a), (b), (c)

60. 60
•Re Lowrie(1981) –merely having young children living in the disputed
property in not sufficient
•Harrington v Bennett (2000)–application was granted eventhough
the sale was after one year of Bankruptcy as the view that better sale
price could be obtained than that sale price of the TIB
•Barca v Mears (2005)–Re Citroincompatible with Convention rights
and ‘shift of interpretation of the statute may be nec’ -difficult to qualify
what is exceptional circumstances / Sale would be inconsistent with
Article 8 ECHR (respect to private and family life) and Article 1 Protocol 1
(peaceful enjoyment of the possessions) -these may qualify as the
exceptional circumstances (i.e. private and family life of all the occupiers
and to ensure respect for property rights)
•Claughtonv Charalambous (1999)–sale was postponed because
the wife was terminally ill and the house had been specially adapted to
her needs

61. 61
•Re Bremmer (1999)–Bankrupt was diagnosed for cancer and had
only has 6 mthsto live –wanted wife to take care of him during his final
stages of life -sale was postponed until 3 months after the anticipated
death of the terminally ill bankrupt as it had an impact on the wife, who
is the only carerfor the husband –deemed to be exceptional
circumstances
•Re Raval(1998)–Sale postponed because Bankrupt’s wife suffered
from paranoid schizophrenia where any adverse events such as leaving
the house will leave a huge impact on her health
•Everittv Budhram(a bankrupt)(2009) –mental state of bankrupt’s
wife was considered exceptional circumstances

62. 62
Matrimonial Causes Act 1973
This statute is invoked when the co-owner of the
property only has a right to occupy matrimonial
homes entirely independent of a right of ownership
-Usually upon divorce
Several factors must be taken into account by the
courts when deciding
S 25 MCA 1973
Provides for the factors that
the courts will take into account
as guidance to the exercise of
the powers
S 24 MCA 1973
The courts have unlimited
discretion to re-allocate
property between the
parties upon divorce
•White v White (2001)
-starting point is equal
division
Note: S 37 Matrimonial Proceedings
and Property Act 1970
Courts to can take into account
contribution by spouse in money /
money’s worth to property improvement

63. 63
Family Law Act 1996
Applies to people who may have rights to occupy
matrimonial homes independently of ownership rights
e.g. spouses, civil partners and former spouse / civil partners,
cohabitants
-Chan v Leung (2003) –non-owner could occupy the
property and preclude the owner in a circumstance of
domestic violence (short term remedy for not more than
six months)

64. 64
Civil Partnership Act 2004
Applies to same sex civil registered partnerships
(in circumstances of dissolution of the partnership)
Statute came into force on 5 December 2005
S 66 CPA 2004
Jurisdictions of Courts to
settle disputes when there
is contribution by civil partner
to property improvement
S 65 CPA 2004
Where partner has contributed
towards the improvement of
the property in “a substantial
nature”, such partner will
acquire a share / enlarged
share as agreed by both partners
or as the courts deem just