2020 ZB Q No.

5: As Amber, Beth, Carol, Dick and Edmund all worked together at the same
bank in London they decided to buy a house for them to live in together. In 2015 they
purchased the registered title to Mansion House, a large property within easy
commuting distance of their place of work. They each contributed the same amount of
the purchase price and all of them became beneficial joint tenants of the property. In
2016 Amber went for a six-month internship at a bank in New York. She loved
working and living there so much that she decided to give up her job in London and
stay on. Amber sent a letter addressed to Mansion House. In it she wrote, ‘I have
decided to stay over here permanently. Please text me once Mansion House is sold and
I will let you know where to send the money for my share’. As Carol hurriedly left for
work a few days later she picked up Amber’s unopened letter along with a pile of
others from the hall table. Believing them to be junk mail she threw them all into a bin.
In 2017 Edmund needed to find money to indulge his passion for buying vintage cars.
He therefore mortgaged his share in Mansion House to Auto Finance plc and bought a
1969 Ferrari. In 2018 Dick died in a boating accident. In his will he left all his property
to his nephew, Freddie. In May 2019 Beth decided she had had enough of banking and
working in London and started to make plans to re-train as a nurse in Newcastle. Beth
spoke to Carol about the possibility that Carol might buy her share in Mansion House.
Carol expressed an interest but wanted time to get a valuation and talk to her
accountant. A week later they informally agreed on a price, and Carol said she would
consult a solicitor. However, having spoken again with her accountant, Carol changed
her mind. Beth was annoyed but decided to put her plan to change careers on hold when
she discovered she was pregnant. Last week Auto Finance plc wrote to Edmund telling
him that as he has fallen behind in his repayments it is seeking to have Mansion House
sold. When Edmund told Beth and Carol they insisted they do not want the property to
be sold. As a single mother Beth wants to continue to live at Mansion House with her
baby. Advise Beth and Carol about (a) who is entitled to claim ownership rights in the
property and (b) the likelihood of sale. Indicate briefly how your advice on (b) would
differ if Auto Finance plc had obtained a court order declaring Edmund bankrupt.

2020 ZB Q No.4: In 2015 Alice, Ben, Christine and Debbie, all new teachers at Borchester
Green High School decided to pool their resources and buy a house for them to live in
together. They purchased Primrose Cottage, which was conveyed to them ‘as beneficial joint
tenants’. In 2017 Alice died in an accident when she was leading a school field trip. In her
will she left all her property to Ben. In 2018 Ben took unpaid sabbatical from teaching to go
travelling around Australia with his girlfriend, Ellie. Ben sent a postcard to Christine and
Debbie, saying that he had decided to stay in Australia. Ben wrote that although he had
enough money to live on for a few months he would need Primrose Cottage to be sold in the
near future so that he could have his share of the sale money. When the postcard arrived at
Primrose Cottage, Debbie read it, but, as she did not want Primrose Cottage to be sold, she
did not show it to Christine. A month later Ben was killed in a freak surfing accident. In his
will Ben left everything to Ellie. In 2019, when Christine found it hard to make ends meet,
she mortgaged her interest in Primrose Cottage to her friend, Robert, a property investor. In
January 2020 Christine’s financial position deteriorated and she defaulted in her mortgage
repayments to Robert. Having returned from Australia, Ellie insists that Primrose Cottage be
sold. Robert is in agreement. However, Debbie does not want to sell because she is now a
single mother with a young child, Furgus. She tells Ellie and Robert that she cannot possibly
move because it would have an adverse impact on Furgus who is undergoing treatment for a
rare heart condition at the local hospital. Advise Ellie: (a) as to who is entitled to the legal
and beneficial ownership of Primorse Cottage and (b) whether she is likely to succeed if she
seeks to have the property sold.

2019 Q No.5 – Same Question ZB In 2016 Alec, Ben, Cath, Dina and Ed, five aspiring
actors, contributed unequal amounts towards the purchase of a large house in London for
them to live in together. Title to the house was registered in Alec, Ben and Cath’s
names; and they executed a declaration that the beneficial estate was held for all five of
them as joint tenants. In Jan 2017 Cath gave birth to a child, Zanthe. Six months later
she was offered a small part in a film when she visited Hollywood. She sent the others a
post card saying she wanted to sell her interest quickly so that she and Zanthe could
move to live in America. The next day Cath’s agent telephoned with the bad news that
the film had been cancelled. Cath immediately emailed the others to tell them to
disregard her postcard because she and Zanthe would not be leaving after all. In May
2018 Ben took out a loan from the City Bank when he bought a collection of movie
memorabilia at auction. City Bank required Ben to charge his interest in the house to
secure the loan. In December 2018 Dina collapsed and died on stage during the
performance of the musical Les Miseries. In her will she left all her property to a charity
that supports retired actors. A few weeks later Ed, who was grief-stricken at Dina’s
death, told the others that he wanted to sell his interest in the house. Ben said that he
could not afford to buy it. Alec made an offer but Ed rejected it as too low. Cath spoke
to her bank manager, who advised her against the investment. Alec raised his offer price,
but Ed changed his mind and decided not to sell. Three months ago Ben defaulted on his
loan repayments. The City Bank now wants the house to be sold but all the residents
want to stay in the house. Advise the City Bank: (a) as to the allocation of the beneficial
ownership in the house; and (b) whether it is likely to succeed if it seeks to have the
house sold.

2018 ZA Q No.4 Xavier and Zena met at law school in London. They have been
an unmarried couple for ten years. Both of them work as solicitors in the same
legal firm. Zena has been more successful in her career. She was recently
appointed a partner in the firm and now receives an income of £250,000 per
annum. Xavier is paid £80,000 and is not a partner. They bought the freehold
interest in a house in suburban London in 2010 for £440,000. The legal title in
the property was registered in their joint names. The deposit was funded by a
gift of £40,000 from Xavier’s parents “towards your first proper home together”.
The remaining £400,000 was provided by way of a mortgage which was taken
out in the couple’s joint names. The mortgage repayments were made out of a
joint bank account. Xavier had known the vendor of the house from their days on
the university football team. He negotiated a reduction in the purchase price of
the house of £20,000 on the basis that he would provide the vendor with some
free legal advice. The couple had a discussion about their expenses in 2010. As
a result, Xavier paid for the lease on their car, the broadband bill and for both of
their mobile phones throughout their relationship. Zena paid for all utility bills and
 for their holidays. They did not discuss their property rights in the home. In 2014,
Zena became pregnant. She took a break from work, including one year unpaid,
so that she could spend time with their child. Their child required constant
medical care. Zena used her savings to pay for that medical care. Xavier was
the only person earning an income during that year. Therefore, Xavier took sole
responsibility for the mortgage during that period of time. Paying the mortgage
used up all of Xavier’s spare income. Zena has discovered that Xavier has been
unfaithful to her. Consequently, Zena now wants to leave Xavier. Advise Zena
as to her rights in the house.

2016 ZA Q No. 5 : In 2008 five solicitors, Sam, Tarquin, Ursula, Venus and Zachary bought
Tumbledown House as a place to stay in London during the week as they worked too many
hours each day at Fat Chance, a solicitors firm, to commute from their homes in the country.
Sam and Tarquin each paid 40% of the purchase price and Ursula 20%, whilst Venus and
Zachary paid nothing. The house was conveyed to the five of them as beneficial joint tenants. In
2011 Sam went to work abroad. He sent a letter to Ursula, Tarquin, Venus and Zachary saying
that he wanted Tumbledown House to be sold immediately so that he could ‘take his 40%’. The
note was sent by standard post to Tumbledown House and was opened by Ursula who
immediately threw it away without showing it to the others. On emptying the bin Venus
discovered the note and sent an email, which she mistakenly sent to everyone at Fat Chance,
telling them that she was hurt not to have been consulted and had consequently decided to sell
her share of Tumbledown House with immediate effect. However a few days later she
discovered she was pregnant and decided not to go through with her plans to leave. In 2012
Ursula died in a car crash on the way to the christening of Venus’s daughter. Her will left all of
her property to Tarquin. You are consulted by Sam, who has returned to the UK and wants to
resume living in Tumbledown House. However, Tarquin and Zachary have told him that, since
being made redundant, they have agreed to sell Tumbledown House, although Venus is
currently refusing to move out. Advise Sam: a) as to the effect of the above events on the legal
estate and equitable interests in Tumbledown House; and b) whether Tarquin and Zachary are
entitled to exclude him and Venus from living there and whether there is anything he can do to
prevent a sale.

2016 ZB = No Question

2017 ZB Question 8 : ‘The concepts of joint tenancy and tenancy in common are convoluted and
obscure. By contrast, the Trusts of Land and Appointment of Trustees Act 1996 has introduced
important new ways of protecting the rights of beneficiaries to land which reach beyond the limits
of the case law.’ Discuss.

2017 ZB Question 8 : ‘The law on co-ownership of the home is of limited application in the
modern world. The concepts of joint tenancy and tenancy in common belong to another age.
However, the Trusts of Land and Appointment of Trustees Act 1996 did achieve a progressive
recognition of the rights of beneficiaries under trusts of land which empowers the court to protect
the vulnerable in their homes. Unfortunately, the case law has not yet shown sufficient concern
for the protection of occupants over other interests.’ Discuss.

Co-Ownership

Introduction:
 The concerned question deals with the issues related to the concepts of co-
ownership. Law regarding co-ownership is a product of common law and statute.
In British legal system, this concept is governed under LPA 1925 and TOLATA
1996. The answer will accord advice to ______ regarding the issues related to co-
ownership and discuss whether ______ has some legal or equitable interest in the
property or not? The answer will also determine the trustees and beneficiaries of
the property, relationship between them, and other issues related to it.

Law regarding operation of Co-ownership:

When two or more parties own a property collectively, it is called co-ownership.
According to the s.1(1) of LPA 1925 the co-ownership in Britain operates under
the Trust of Land. On the authority of LPA 1925, the co-ownership can only take
place through joint tenants or tenancy in common. Under joint tenancy, all the
joint tenants own the property wholly and there are no clear-cut or distinct
shares. On the other hand, under the tenancy in common, parties have distinct
number of shares but have a right to possess the whole land.

Determining Trustees and beneficiaries:

The next main requirement to address the question is to determine the trustees
and the beneficiaries of the property and what is the relationship between them.
In the present scenario, ____________ will be the trustees. S.34(2) of LPA 1925
says that in any trust of land, the maximum number of trustees will be four, if
there are more than four legal owners the first four will be the trustees.
According to s.1(6) LPA 1925, the relationship between trustees is always that of
joint tenants. In the present scenario, __________ will be the beneficiaries of the
property. It is required to determine the relationship between the beneficiaries.
The first thing that needs to be considered is to see if there is some written
declaration telling the relationship. As, s.53(1)(b) says that if there is an express
declaration in writing, it will be followed. It can either declare them JTs or TICs. As
in the case of Goodman v Gallant says that the express words are conclusive. If
there is no written declaration, then equity will follow the law and the
beneficiaries will be JTs as in the case of Roy v Roy were the brothers were
declared to be JTs in equity. This presumption can be rebutted in four scenarios; if
the property is commercial; if the property is residential and the parties have
given unequal contribution; if the unity of title, interest and time is absent. The
presumption can also be rebutted if there has been use of some severance words
like ‘to be divided’ in the case of Fisher v Wigg and ‘un-equal shares’ in the case
of Payne v Webb. In these scenarios, the presumption will be rebutted and the
beneficiaries will have a relationship of TICs. In the present scenario the
relationship between beneficiaries is that of ___________.
Absence of Common Intention--------- Stack v Dowden. (If a different common
intention of the parties is identified, the presumption can be rebutted.) Affirmed
in Jones v Kernett.

Right of Survivorship:
The issue here is that whether the claimant’s interests can be transferred via the
doctrine of survivorship or not? The rule regarding survivorship as explained in
the case of Gould v Kemp is that, in order to transfer the interests in a property,
the claimants must have a relationship of TIC between them. The doctrine of
survivorship is in-applicable if the relationship between parties is that of joint
tenants. When one joint tenant dies, his interests die with him. Neither, can he
pass the interests to anyone else, nor any will would be acceptable. The law says
that his interests will accrue to the remaining joint tenants. According to the given
facts ______________.

Severance:
Severance is a process of converting from a joint tenant to a tenancy in common.
Joint tenancy can create hardships for some people as it has a burden of
survivorship as depicted in the case of Malayan Credit Ltd. v Jack Chia MPH. In
order to avoid the operation of survivorship, the beneficiaries may tend to severe
and convert into TICs. In JT there are no distinct shares and the property is owned
wholly by each JT but in TIC the parties have distinct shares which they can
identify. The severance can only take place in an equitable joint tenancy as TIC
only exists in equity. When parties are severed, their shares are calculated with
respect to the number of joint tenants. The issue is that whether on the given
facts _______ has severed the equitable joint tenancy or not?
Severance can take place through two methods; statutory method given in the
s.36(2) of LPA 1925 and; common law methods given in the case of William v
Hensman (1861).
According to the statutory method of severance, any equitable joint tenant can
sever by giving a written notice to rest of the joint tenants with an intention to
sever. It is completely a unilateral conduct and does not require permission of
rest of the JTs. The notice, as per s.196 LPA 1925, must be served properly
meaning thereby, the notice needs to be delivered through a registered post to
the last place of business of the rest of the JTs. According to the case of Kinch v
Bullard (1999), It is not necessary for the rest of the JTs to read the notice. The
severance takes place as soon as the notice reaches the address.
The notice can be of many forms, as in the case of Re Draper’s Conveyance, a
summon claiming to sale the co-owned property and in Quigley v Masterson, an
application to the Court of Protection was held to qualified to constitute a notice.
Signature----- According to the case of Berkeley v Road (1971), the notice neither
needs not be signed nor comply with any formalities.

Apart from the statutory method, there are three more ways to sever an
equitable joint tenancy, given in the case of William v Hensman. These are known
as common law methods of severance.
An Act operating on ones’ own shares:

The first method of common law severance is an act operating on one’s own
shares. In this method, an equitable joint tenant manifests an intention to no
longer be a part of JT. If an equitable joint tenant sells his shares, this is known as
alienation and will result in severance. It can also take place through partial
alienation that is giving shares as mortgage. Bankruptcy, as in the case of Re
Dennis (1992), can also result in severance. Moreover, obtaining signature
through fraud or forging the signature of other joint tenants can result in
severance. An example is given in the case of Banker’s Trust v. Namdar (1997),
where one of the legal owners forged the signature of the other legal owner. In
the present scenario, _______________.

Mutual Agreement:

The second method of William v Hensman severance is Mutual agreement. In

this type of severance, the parties which agree to terminate the joint tenancy will
sever and become tenants in common. The agreement needs not to be written
and can be oral. According to the case of Hunter v Babbage (1994), there is no
need for the agreement to be acted upon as it indicates an intention to destroy
the joint tenancy. In the case of Davis v Smith (2011), the agreement to sale the
house was later constituted to have caused severance.

Mutual Conduct:
 Mutual conduct is another way of severance given in the case of William v
Hensman. Severance takes place when joint tenants do a conduct that terminates
the joint tenancy. The conduct depicts that the joint tenants no more have the
intention to stay in joint tenancy. There is no need for an agreement for this type
of severance. The effect of it is that the joint tenants are converted into tenants in
common. Mutual conducts like physical partition of the property, negotiations
between the parties and writing of mutual wills can lead to severance by mutual
conduct. According to the case of Gore and Snell v Carpenter, all the joint tenants
should be involved in the conduct and not only some of them.

Unlawful Killing:

According to the case of Re Caines (1978), If a joint tenant unlawfully kills another
joint tenant, he is unable to benefit from the right of survivorship and severance
takes place. This is also supported by the case of Dunbar v Plant. This principle,
according to the case of Chadwick v Collinson (2014), is based on public policy.