Unit 8 Co-Ownership
Unit 8 Co-Ownership
Unit 8 Co-Ownership
Unit 8:
Co-ownership
How it exists:
Co-ownership can exist in leaseholds and freehold interest
Joint Tenancy:
“A transfer of land to two or more persons as joint tenants operates
so as to make them via-a-vis the outside world, one single owner.”-
Hammersmith and Fulham v Monk [1992] 1 AC 492
Main features:
Unity of Interest
Each JT must have same interest in extent, nature and duration in
the land
Unity of Title:
Each JT must claim title to land under same act or document:
Antoniades v Villiers [1990]
Unity of Time:
Interest of each Tenant must vest at the same time
AG Securities v Vaughan [1990] 1 AC 417
Severance of JT:
Lawrence and Others v Mahfood: Court of Appeal: Jamaica
2010
The Court of Appeal accepted that there are three methods of
severing a joint tenancy –
TIC:
1. Undivided shares- each tenant has a distinct share in the
property which has not yet been divided among the co-tenants-
Fisher v Wiggs (1700)
In Equity:
Equity favours the creation of a Tenancy in common and
presumes that there exists a TIC primarily because of its
grounded principles of fairness and justice over simplification of
probate or conveyance practices.
TIC offered certainty and equality over right of survivorship: R v
Williams (1735) and Re Woolley [1903] – survivorship looked
upon as odious in equity.
ARTICLE OF INTEREST:
EQUITY FAVOURS TENANTS IN COMMON-
EXTRACT FROM HALSBURY LAWS of England > EQUITABLE
JURISDICTION (VOLUME 47 (2014) 5TH EDITION) > 4. PRINCIPLES
OF EQUITABLE JURISDICTION > (6) EQUALITY IS EQUITY > 109.
Equity prefers a tenancy in common.
Trust for the benefit of several persons, and some are not yet born
or ascertained, the
existing beneficiaries will hold jointly with the others when they are
born or
ascertained – Mutton’s Case
- A conveyance by a bachelor to the use of himself and the wife he
might marry will
operate to create a J/T on his marriage.
Tenancy in Common (T/C)
v T/C differs significantly from J/T in that: -
1. There is no Right of Survivorship
- On the death of a tenant in common his estate passes to his
devisee or heir. It does
not merge into and enlarge the estate of the surviving co-tenant.
2. The tenants hold in undivided shares
- Each tenant has a distinct fixed share in the property, but the
property is treated as a
single unit.
- The Unity of Possession Doctrine explains the fact that though the
share of a tenant in
common is precisely allocated, he cannot lay an exclusive claim to
any portion of the
property.
- The share of a tenant in common is so distinct and recognized that
on his death it
cannot be altered; it is inheritable and devisable.
- Other than Unity of Possession the other 3 unities need not be
present for a T/C.
Methods of Creation
Joint Tenancy
J/T is created where land is granted to 2 or more persons with: -
(a) Words of severance, e.g. in equal shares; equally; to be divided
amongst; shares
respectively.
Christian v. Mitchell Lee (1969) 13 WIR 302 – the wording of the
devisee presented a
problem of interpretation. On the death of Adeline Edwards, the
administrator of her
estate contended that the words “the shares respectively” referred
to the separate and
distinct shares of Edwards (deceased) and Mitchell-Lee, and t/fore,
the grant created a
T/C with the result that, on the death of Edwards, her share passed
to her estate. This
argument was rejected by the trial judge, who considered the word
share as indicating
the property devised and not a part of it. The Ct. App. Overruled the
decision on the
ground that, “the words bear their usual connotation of division and
distribution.
4
They indicate the intention of the grantor was that each of his
daughters was to have
a share in the properties conveyed, and that the interests conveyed
to them in the
premises were to be taken by them separately; in effect, that they
were to hold as
tenants in common.”
(b) where equity treats a J/T at law as a T/C.
(c) Where a joint tenant severs his J/T by alienation of a greater
interest, agreement or
course of dealing – Williams v. Hensman.
(d) One of the 4 Unities is missing.
(e) Where equity presumes a T/C, equity will prevail to impose a T/C
on the tenants who
will retain the legal title as joint tenants, but hold the legal J/T
subject to their
interests, which will be held under a T/C.
Tenancy in Common
T/C arises where a J/T does not exist for one or more of the following
reasons: -
(a) There are words of severance, e.g. where the property is
conveyed or devised “to
share and share alike”
(b) Any one of the Unities is missing;
(c) Where equity presumes a T/C;
(d) Where Statute presumes T/C, e.g. Antigua, Real Property
Ordinance 1873, Cap. 289
s.15 – Dominica Real Property Act, 1873 Cap. 219 s.14.
Equitable Presumption of Tenancy in Common
- Whereas the C/L favored J/T, equity has always leaned in favor of
T/C, as equity
preferred the certainty and equality of a T/C to the element of
chance, which the ius
accrescendi of a J/T introduced.
Equity’s abhorrence for J/T is manifested in the following situations
where equity would treat
persons who are joint tenants at law as tenants in common of the
beneficial interest: -
1. Purchase money provided in unequal shares
-where 2 or more persons together purchase land in unequal shares
a T/C of the property is
presumed in equity, and the purchasers take shares proportionate
to the amounts advanced by
each – Lake v. Gibson (1729) 21 ER 1052
-on the death of one of the persons, the survivor will become
entitled at law to the whole
property, but in the eyes of equity he will hold the deceased share
Accrescendi.
-At law the ius accrescendi will allow him to have the whole estate,
but in equity he would
hold the legal title subject to the beneficial interest of himself and
the estate of his victim.
Note:- In Belize and the UK there is no Severance as Tenants-In-
Common cannot exist as a legal
estate.
Partition
-Under the C/L it is permissible for all the co-owners of full age to
partition the land if they all agree.
-The Unity of Possession will be destroyed and each of them will own
his allotted piece exclusively.
-Partition is only possible where they all agree, and the agreement is
sealed.
Note: - The Partition Acts 1539 and 1540 (UK) conferred a statutory
right to bring an action to
compel partition by means of a writ of partition.