Term
| Distinguish joint tenants and tenants in common. |
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Definition
- Joint tenants have, in relation to all others but themselves, the properties of a single owner. Although they have separate rights between themselves, they are not entitled to distinct shares in the land.
- Where two or more persons are entitled to the land in a distinct but undivided share. No right of survivorship |
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Term
| What are the four unities? |
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Definition
1) Of Possession: right to possess, not exclusively the whole of the estate. Can't turn out another co-owner.
2) Of interest: each t has same kind of estate. no distinct share, share equally as a whole;
3) Of title: title created by same document
4) Of time: interest has to vest at the same time. |
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Term
| Explain the right of survivorship. |
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Definition
On the death of a joint tenant, unless the joint tenancy has been severed in his lifetime, land vests in the surviving joint tenant(s)
Can only sever when alive, not through will. |
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Term
| Where persons have died and it is unclear which of them survived the others, presumption that the deaths occurred in order of seniority, younger surviving elder. |
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Definition
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Term
| Creation of JT and TIC post-PLA? |
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Definition
in favour of TIC (s35(1)) except:
35(2)(a): where JT expressly stated;
35(2)(a): where exec, admin, trustess/mortagagees hold prop.
Where prop held for partnership purposes. |
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Term
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Definition
a) To two or more persons, without any indication of how they are to hold the land
b) In unequal shares, or where any one of the four unities is absent
c) With words of severance being used |
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Term
| In which situations are JT @ law presumed to hold as TIC in equity? |
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Definition
a) Partnerships: intention not to benefit through survivorship. Deceased's share held on trust by surviving partner (Lake v Craddock)
b) Unequal purchase money contributions: shares proportionate to contributions in equity. (Bull v Bull)
c) Mortgages: unlikely right of survivorship intended to apply (Morley v Bird) |
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Term
| - Co-owners have equal rights of use and enjoyment |
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Definition
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Term
| Right to bring strangers on to co-owned property |
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Definition
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Term
| Right to create a lease. Co-owner can lease their share of the common property to a third party or a co-owner. |
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Definition
| - Cantanzariti v Whitehouse: |
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Term
| Rule against owner occupation rent |
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Definition
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Term
| - Exceptions: co-owner can be liable to pay occupation rent where: |
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Definition
There is an agreement to pay rent
The occupier is claiming a contribution for improvements made (Teasdale v Sanderson)
Where there has been ouster (Re Thurgood) |
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Term
| What was the question from Re Thurgood? |
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Definition
Question is whether the action of one co-owner makes it unreasonable to expect the excluded co-owner to exercise their right to occupy the premises.
Has to be an act which is inconsistent with other’s use of the property, and an act which excludes another from living there. |
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Term
| Exception to s43 PLA where the profits result from a co-worker working the land himself (where some co-owners work the land and others do not although they are not excluded). |
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Definition
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Term
| Rights to compo for improvements or repairs at law? |
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Definition
No right to recover compensation unless:
There was an agreement, or
There was a joint obligation to make the improvement |
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Term
| Rights to compo for improvements or repairs in equity? |
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Definition
A co-owner is entitled to a contribution or compensation for improvements to co-owned property, from the other co-owners, when the co-ownership is brought to an end
Brickwood v Young |
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Term
| How to assess the valuation of improvements? |
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Definition
Co-owner is entitled to the lesser of: (McMahon v Public Curator)
The actual cost of the improvements, or
The amount by which the improvements have increased the value of the land |
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Term
| - Compensation cannot be recovered for repairs in the nature of ordinary maintenance (ie painting house), or for repairs made under a contractual obligation, or where repairs were intended as a gift or joint venture |
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Definition
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Term
| 5 ways JT can be terminated? |
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Definition
a) Conversion into tenancy in severalty
b) Severance by Alienation/Unilateral Act (Corin v Patton)
c) Severance by Mutual agreement or Conduct
d) By Homicide (Rasmanis v Jurewitsch)
e) Merger: If one of the tenants acquires the fee simple the unity of interest is destroyed and other co-owners interest transforms into an interest for life |
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Term
| What is converting into tenancy in severalty? |
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Definition
| - Transfer of the interests of all joint tenants into one person who owns the land |
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Term
| What is Severance by Alienation/Unilateral Act? |
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Definition
| - Tenant must transfer his/her interest either at law or in equity. May do so inter vivos (while alive), but not by will. |
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Term
| What does Corin v Patton say about severance in equity? |
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Definition
| - May sever unilaterally in equity if co-owner does everything that needs to be done to sever at law |
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Term
| What is Severance by Mutual agreement or Conduct |
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Definition
| - A specifically enforceable agreement between all the joint tenants will sever the joint tenancy in equity. |
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Term
| What agreements will be effective in severance? |
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Definition
- Formal agreements (e.g. court orders, maintenance agreements in Family Court) will sever joint tenancy (Re Pozzi)
- Informal agreements will generally be ineffective (Corin v Patton) |
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Term
| What conduct will be effective in severance? |
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Definition
| - Payments of sale of property by JT into separate bank accounts represent course of dealing sufficient to sever (Abela v Public Trustee) |
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Term
| How do you terminate a TIC? |
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Definition
a) Conversion into tenancy in severalty – one person owns land
b) Partition or sale |
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Term
| How does a termination by partition or sale work? |
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Definition
- Co-ownership may be terminated by the co-owners by application to the court for:
(a) sale of the property and division of profits in proportion to their shares or;
(b) physical partition of the land in accordance with their shares. |
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