#16443 - Co Ownership Notes - Property law

Past Exam Qs:

March 2013: Problem Q on whether the form of co ownership was a joint tenancy or tenancy in common. Discuss the features of joint tenancy and issue of severance as well.

April 14: In 1990, Jack and Jill purchased a 100 acre farm as tenants in common in equal shares in County

Sligo. For a number of years, they lived happily on the farm together but then in December 1995,

Jill left after a major row and emigrated to New Zealand. Jill has recently returned to Ireland and

now seeks your advice as to what to do in relation to the farm. In particular, she would like to

know if she can force a sale or require Jack to pay a rent to her. She would like to know if there

are any other options open to her. And

(b) Discuss two ways by which co-ownership may be brought to an end.

March 15: PQ. – TO INCLUDE: Rights of Co-owners :

Right to Possession ,. Right to Rents and Profits from the land Jones v. Jones [1977] 2 ALL ER 231

. Right to Alienate the land Co-ownership to an end , Sale, Partition/sale in lieu of partition, Vesting in one owner

Interests in land may be held by more than one person at the same time, which implied some form of co-ownership.

Co-ownership
Four different types of coownership but only two are still significant. Joint Tenants and Tenancy in Common. Freehold and leasehold land can both be held in coownership.

Joint Tenancy
JT was popular in feudal times because it was convenient in terms of inheritance. It will only exist if the right to survivorship and the four unities are present.
The right of survivorship means that once one tenant dies there is no interest that he can leave to an heir or that can be passed on by intestacy. When the joint tenant dies, his or her interest in the land ends and the remaining joint tenants hold the property among themselves. All JOINT TENANTS hold 100% of the ownership and when one dies, the remaining JT retain the ownership – this of course means that the number of joint tenants is ever decreasing.

2 main consequences of this:

a) a joint tenant cannot transfer his or her interest in a will

b) no of tenants constantly decreases so that eventually only one joint tenant holds the estate alone.

Diagram page 111 of book
All four unities must exist for a joint tenancy to be present

1. Unity of Possession Common to all co-ownership. All JTs are entitled to possess and enjoy all of the property. Each is allowed to own and possess any part of the land equally, it isn’t divided into separate parts. Each co-owner must be entitled to the whole of the land. Lahiffe v Hecker

2. Unity of Time; Each JT must have vested at the same time, aka they must have been given the property at the same time (except where created by a disposition in a will or by a conveyance to uses.)

3. Unity of Title All JTs must have acquired their interest from same document or from same transaction. Maher v Maher

4. Unity of Interest All the interests of the JTs must be identical in terms of their nature and duration. Each JT must have the same estate in the land. Can’t be JT if one owner has a life estate and the other a fee simple.

Clearly the each of the four unities complement each other. For instance, if there is unity of title, there will naturally be unity of time. The rights of each co-owner can most simply be broken down into the right to possession, the right to rents and profits from the land, and the right to alienate the land.

Creation of a JT The common law presumes that a joint tenancy exists every time there is more than one property owner. If parties want the equitable ownership to also be held in JT they should say so. ‘To A & B as joint tenants holding in trust for themselves as JT’

Fiona de Londras notes: The common law has a natural tendency towards the JT. The simplicity introduced by the right of survivorship.

(NB) Severance of a JT Despite the fact that no shares of ownership in a JT there is no reason why a JT could not behave in a manner which suggests that he concieved himself as holding a share of ownership. This would change to TIC. If the action (normally a conveyance) is formalised – would mean severed in law, if not formalised, then severed in equity.

Severance is the process by which the rights of one joint tenant are converted into a distinct share of ownership, so making him or her a tenant in common.

Section 30 has had a significant impact. Should not be possible for one joint tenant of land to sever a joint tenancy on a unilateral basis. 30(1) provides that any conveyance of land subject to a joint tenancy, or any acquisition of a further interest in the land, is void without the prior written consent of the other joint tenants.

(2) consent sufficient to effect a severance must be given by all the other joint tenants prior to the severance and in writing.

(3) clarification of the law concerning events which might be taken to effect an “involuntary severance”. There is no severance where the estate or interest of one joint tenant has a judgment mortgage registered against it.

(4) Although the legal title of the land remains in the joint tenancy, all the joint tenants have agreed or shown by their conduct that it should be severed in equity.

Section 31 replaces the complicated and uncertain provisions of the Partition Acts.

1. Confers a new statutory jurisdiction on the courts to make a wide range of orders specified in (2)

If someone wants to sever join tenancy, they should be able to sell just their share of the property, but if they wanted a better price by everyone selling, they would have to seek a court order for sale in lieu of partition.

2. Lists a wide variety of orders which the court can make, including orders for partition and a sale and division of the proceeds of sale.

3. Court has a wide discretion as to what order it may make, including not making an order in a particular case.

4. Spells out the different kinds of adjustments which might be appropriate according to the circumstances of a particular case.

EXAM REPORTS:

More specifically, the question required a discussion of the law as set out under Section 30(1)

of the LCLRA 2009 as it relates to severance-any conveyance of land subject to a Joint Tenancy

or an acquisition of a further interest in that land, is void without the prior written consent of

the other Joint Tenants (unless this requirement is dispensed with by the courts under section

30(2) (e) on the basis that is unreasonably withheld). This requirement is potentially open to

challenge on constitutional or human rights grounds according to Pearse and Mee. All co-

owners have a right to possess and a right to rents and profits.

Severence in Law
1. Alienation to a Third Party – If a joint tenant alienates his interest to another person by way of sale or gift, then this will effect a severance, for it destroys the unity of title. Such an action results in the destruction of the unity of title and therefore a joint tenancy is no longer possible. Re Gilburn 1975. Other co-owners would continue to stand as joint tenants in relation to one another, but collectively as tenants in common with Dominic.

2. Unilateral Dealing – 1JT selling his ownership to another to the use of himself. The 1JT is the legal and equitable owner of a share of the ownership and is TIC to the others who remain JT to each other (Statute of Uses 1634). Unities of title and time have been destroyed. Section 30 affects this majorly on foot of a recommendation from the Law Reform Commission. Commentators thought this was controversial because there is no strict right of survivorship as it is dependent on fortuitous circumstances and therefore at best a mere hope of being the ultimate survivor. Consent must be prior and in writing.

3. Acquisition of an additional interest. JT would acquire an additional estate in land thereby destroying unity of interest between him and the other co-owners. 4U continue to operate between the non acting JT they continue to stand in a JT in relation to one another but stand as one in a TIC in relation to acting JT.

4. Act of a 3P under statutory powers – one of the most common cases of involuntary severance used to arise where a creditor obtained a judgment mortgage on the land of a JT and the property is sold pursuant to that judgment mortgage. The purchaser of this would be a TIC. S 30 of The Land and Conveyancing Reform Act 2009 has stated that a Judgment mortgage against estate of a JT does not sever the JT and if JT remains unsevered the JM is extinguished upont the death of the judgment debtor.

Where the co-owned land is unregistered, the judgment mortgage affects a severance and, as a result, only the share of ownership held by the debtor is affected by implementation of the judgment mortgage. This does not appear to the the case in relation to registered land, although the law, as it stood per the 2009 Act was far from clear on the issue Irwin v Deasy 2006.

S 30 has altered the position – registration of a judgment mortgage against the estate or interest in land of a joint tenant does not sever the joint tenancy and if the joint tenancy remains unsevered, the judgment mortgage is extinguished upon the death of the judgment debtor.

5. Commorientes This refers to the situation where all the joint tenants are killed in circumstances where it is not possible to determine the order of death for the purposes of the right of survivorship. In general “those who found a right upon a person having survived a particular period must establish that fact affirmatively by evidence.” Re Phene’s Trust. The traditional approach was that, as Lord...