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63 Cards in this Set
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- Back
s. 1 TLATA |
Whenever land is co-owned, it is automatically held on trust |
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How does co-ownership happen? |
Express - s.53(1)(b) - evidenced in writing and signed by all co-owners. Implied - co-owners all contribute to purchase price (Lloyds Bank v Rossett) |
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What is the maximum number of legal owners? |
FOUR - s. 34 (2) Trust Act |
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How are these four decided? |
- Have to be sui juris - s. 1(6) LPA - First four named on deed s.34(2) TA |
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What is the only way legal title can be held? |
As joint tenants s.1(6) LPA |
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What is the maximum number of equitable beneficiaries? |
There is no maximum number |
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How do you tell if they are joint tenants? |
Four unities will be present |
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What are the four unities? |
Possession - no segregation Interest - same interest in land Time - interest vests from same time Title - interest vests from same document |
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Bull v Bull |
Might be a tenancy in common if they have contributed unequal amounts to purchase price in a commercial property |
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Stack v Dowden |
Confirms that contributing unequal amounts does not make it a tenancy in common in domestic situations |
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Pink v Lawrence |
If there are express words in the deed e.g. 'to be held as joint tenants', this prevails over any assumption |
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What is the right of survivorship? |
Applies to joint tenants - if one dies, their interest is subsumed by other tenants |
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What is severance? |
When the joint tenancy is converted into a tenancy in common |
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Goodman v Gallant |
When severance occurs, will get equal equitable shares as TIC despite initial unequal contributions |
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Griddle v Hooper |
There is always a right to sever |
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Harris v Goddard |
Right of survivorship no longer applies - can leave share to whomever |
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What are the methods of severence? |
s. 36 (2) LPA: - Notice in writing - Other acts or things |
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Williams v Hensman |
Other acts or things: - Act operating on own share - Mutual agreement -Mutual conduct |
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First National Securities v Hegerty |
Mortgaging or charging an interest will be act operating on own share |
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Re Gorman |
Going bankrupt is act operating on own share |
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What must the disposition comply with? |
s.53(1)(c) - It is the disposition of an equitable interest : Signed and in writing |
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What must a notice in writing demonstrate? |
Irrevocable and immediate desire to sever |
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Re Draper |
Divorce papers showed immediate intention to sell the house = severance via writing |
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Harris v Goddard |
Divorce papers merely discussed prospect of house being sold = no severance, not immediate enough |
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Where must a notice in writing be delivered? |
s. 196(3) LPA - to the last known abode of co-owners. |
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Kinch v Bullard |
If sent via ordinary post, will be deemed delivered upon arrival |
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Re 88 Berkeley Road |
If sent via recorded post, will be deemed delivered upon posting |
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Does it matter if other tenants do not read it? |
No, so long as properly delivered - Kinch v Bullard |
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What is mutual agreement? |
Hard to define - but a moment in time where all the parties in agreement about the severance |
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Burgess v Rawnsley |
Quantifiable figure was reached. Full agreement to sell was reached by all parties. |
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Davis v Smith |
Both parties sought legal advice with clear intention to divide up property |
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Hunter v Babbage |
Agreement clearly reached. Never signed but this did not matter |
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Nielsen Jones v Fedden |
There was no agreement on a final price. They had settled small sums but not full amount. No agreement. |
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Gore & Snell v Carpenter |
There were negotiations for years. Several drafts were made but no final or conclusive agreement. |
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What is mutual conduct? |
More of a long-term assumption that they are tenants in common |
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Gore & Snell v Carpenter |
Lengthy negotiations were still not enough to show severance via mutual conduct |
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Davis v Smith |
There were lengthy negotiations with lawyers - this WAS enough to show severance via mutual conduct. |
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Greenfield v Greenfield |
It was not enough to simply divide possessions/leave the property. Has to be a legal suggestion of division |
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s. 6 (1) TLATA |
Legal title owners are trustees and therefore they have the power of absolute owner i.e power of sale |
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s. 11(1)(a) TLATA |
But they have a duty to consult with beneficiaries who are full age AND Give effect to the majority in value wishes so long as they do not conflict with the purpose of the trust |
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What is the purpose of the trust? |
e.g If the trust was bought to be a family home or to further a career - is this purpose ongoing or has it ended? |
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What can parties do to settle disputes? |
Apply to court under s.14 TLATA for order of sale. |
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s. 15 TLATA |
Sets out guidelines for court: - Intention of settlor - Welfare of minors - Interests of beneficiaries - Purpose for which trust is held - Interests of secured creditors |
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Re Buchanan Wollaston |
Land purchased to protect sea-view. Purpose ongoing. Could not be sold. |
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Jones v Challenger |
Property bought as a matrimonial home. This purpose ended. Property was sold. |
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Re Inns |
Property bought as a family home. This purpose was ongoing. Property was not sold. |
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Bank Ireland v Bell |
The purpose was a family home and this was continuing BUT the creditor interest prevailed. Taken very seriously. |
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First National Bank v Archanpong |
Creditor interest prevailed interests of disabled son |
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Fred Perry v Genis |
Children's education was disrupted but creditor interest prevailed. |
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If court orders sale, this will be overreaching |
s.2(1) LPA |
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Ali v Hussein |
Court can choose to postpone sale - Here postponed to allow co-owners to buy out the person who wanted to leave. |
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Mortgage Corporation v Shire |
Be wary of pre-TLATA case law as it was in favour of sale. |
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What happens in bankruptcy? |
- Bankruptcy severs joint tenancy (Re Gorman) - The interest vests in Trustee in Bankruptcy who will want to sell property to realise assets |
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What will trustee in bankruptcy have to do if there is a dispute? |
Apply to court under s.14 TLATA for sale |
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What will court have regard to during 1st year? |
s.335(a) Insolvency Act: - Interests of creditors - Conduct of bankrupt - Needs of children - Needs of other co-owners - Any circumstances except bankrupts |
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What happens after 1st year? |
The interests of the creditors will prevail unless there are 'exceptional circumstances' |
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Re Citro |
Interrupting children's schooling was not enough to be an exceptional circumstance. |
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Re Bremnar |
Terminal cancer. Postponed. |
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Re Raval |
Mental illness. Postponed. |
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Re Haighait |
Severely disabled. Postponed. |
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Ford v Alexander |
s.335(A) IA is compatible with human rights |
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Blanco v Malcom |
There may be some instances where sale infringes Article 6 HR and courts did need to be more 'sympathetic' - but was not found on facts here |
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Donogoe v Ingram |
Again, no infringement on facts |