Co-ownership
Introduction
Two or more people enjoy rights of ownership of land at the same time (freehold and
leasehold).
Law of co-ownership is a set of rules that governs dealings with property that is owned
simultaneously by more than one person.
Married; civil partners; unmarried partners; family members; friends; neighbors;
business partners; other relationships /or none at all.
Applicable law is LRA 1925 and the Trusts of Land and Appointment and Trustees Act
1996 (TOLATA 1996).
Before 1 January 1926, concurrent co-ownership of property could take a variety of
forms.
Since 1 January 1926 co-ownership will either be by way of a joint tenancy or a tenancy
in common.
Joint Tenancy
When land is owned by two or more people on the basis of a joint tenancy, each co-
owner is treated as being entitled to the whole of that land (Burton v Camden).
There are no distinct ‘shares’, and no partition of land and no single co-owner can claim
any greater right over any part of the land than another.
When land is subject to a joint tenancy, there is only one formal title to it and that title is
owned jointly by all the joint tenants.
Bracton – Quilibet Totum, et nihil tenet (each holds everything and yet nothing).
Right of survivorship
upon a joint owner’s death, interest in joint tenancy automatically accrues to the
remaining joint tenants.
Joint tenant who passes away falls out of the joint tenancy.
Cannot pass interest in will under a joint tenancy.
No formal conveyance or written document is needed to reflect the new status quo.
Gould v Kemp (1834), in order to pass property on death, the joint tenancy must have
been brought to an end before death – usually by being severed and turned into a
tenancy in common.
(Scarle v Scarle (2019)) – where it is not possible to determine which of the joint tenants
died first, statute determines that the youngest died last.
Four unities (AG Securities v Vaughan (1988)
1. Unity of Possession
Each tenant is entitled to physical possession of the whole land. (Chun v Ho
(2001).
Each JT has the right to participate fully in the fruits of possession – e.g. receipt
of rents and profits derived from the land.
There can be no physical diversion of the land and no restriction on any joint
tenant’s use of each and every part of the land
However, statute has modified this, one joint tenant can be excluded from the
land on terms and conditions (s.12 and 13 TOLATA).
, 2. Unity of interest
Each JT’s interest in the property must be of the same extent, nature and
duration.
All be JT of freehold or of leasehold.
Different qualities of rights are inconsistent with the nature of JT as a single
owner, joint owned.
3. Unity of title
Each JT must derive their title from the same conveyance documents.
Exception is present – e.g. lease holders JT – even when signed different
documents – reflecting true nature of the agreement.
Matter of substance not form (Antoniades v Villers (1990 – the court decided
that as a matter of law, the two joint tenants derived their title from the same
document, even though there was more than one piece of paper).
4. Unity of time
Interest of each JT must arise at the same time as befitting their ownership of a
single title.
Tenancy in common
Two or more people own land under a tenancy in common, it is often said that
they have an undivided share in land.
Tenancy in common can point to a precise share of the land (despite it being
undivided)
Each co-owner has a distinct and quantifiable share in the land.
Unity of possession must be present for tenancy in common to exist, no other
unity is mandatory.
Right of survivorship does not apply – co-owner can leave his share on death or
may otherwise deal with it during his life.
May be the result of ‘severance’ of a joint tenancy.
Imposition of a trust
All co-ownership operates behind a mechanism whereby the formal legal title is held by
joint tenant trustees on the statutorily imposed trust of land.
The real equitable interest takes effect behind this trust and may be either a joint
tenancy or a tenancy in common.
This trust is effectively defined in s.34 and 36 of the LPA 1925 and Part I of TOLATA
1996.
The trustees will hold the land for the persons interested in it and subject to any express
terms of the trust and statute, with the powers of an absolute owner.
Legal title
The maximum number of legal co-owners are 4 (s.34 TA 1925), in case of more than four
co-owners, first four co-owners mentioned will be trustees, minor and insane co-owners
cannot be trustee, with all five or six and so on, owning in equity as either JT or TIC.
, There should be at least two people holding the legal title to aid in overreaching upon
subsequent transactions of the property.
Legal title can only be held as a joint tenancy (ss.1(6) and 34 LPA 1925).
Equitable title
Equitable title holds a beneficial interest in the property.
Equitable title can be held as a joint tenancy or a tenancy in common by an unlimited
number of people.
If any one of the unities of interest, title or time are absent, a joint tenancy in equity
cannot exist, in such a case, there must be a tenancy in common.
A joint tenancy in equity, can be severed to create a tenancy in common.
Methods of severance are outlined in s.36 LPA 1925 (Williams v Hensman (1861).
Where all four unities are present, equitable title could be held as either a JT or TC.
1. is there an express declaration as to how the equitable title is to be held?
Yes
the express declaration will prevail (Pink v Lawrence (1977).
If the original conveyance to the co-owners stipulates expressly that they are JT or TIC of
the beneficial or equitable interest, this is normally conclusive as to the nature of their
co-ownership in equity (Goodman v Gallant (1986)).
If the relationship of beneficiaries is declared, the declared relationship will be final
relationship.
Unless the written document is fraudulent (S v J 2016).
However, the declaration must be in written form as per s.53(1)(b) LRA 1925.
Roy v Roy (1996)
an express conveyance to P and D jointly was held conclusive between them as to the
existence of a joint tenancy, despite the fact that D had contributed significantly more to
the purchase and upkeep of the property over the years, and that P had lived in the
property for only a few months just after it was purchased.
No
the presumption is that equity follows the law, thus, Joint Tenancy (Cowcher v Cowcher
(1972).
Unless there is evidence to rebut that presumption, in which case a tenancy in common
will exist,
1. Presence of words of severance (express or implied),
‘In equal shares’ indicates an intention that equitable owners have undivided
shares in the property rather than being seen together as a single entity. (Payne
v Webb (1874)),
‘To be divided between’ (Fisher v Wigg)
‘Our ownership is in equal shares’ (Payne v Webb)
‘We own this property equally’ (Leweu v Dodd)
‘This property is to be divided between the two of us’ (Peate)
2. Unequal contributions to the purchase price,
Introduction
Two or more people enjoy rights of ownership of land at the same time (freehold and
leasehold).
Law of co-ownership is a set of rules that governs dealings with property that is owned
simultaneously by more than one person.
Married; civil partners; unmarried partners; family members; friends; neighbors;
business partners; other relationships /or none at all.
Applicable law is LRA 1925 and the Trusts of Land and Appointment and Trustees Act
1996 (TOLATA 1996).
Before 1 January 1926, concurrent co-ownership of property could take a variety of
forms.
Since 1 January 1926 co-ownership will either be by way of a joint tenancy or a tenancy
in common.
Joint Tenancy
When land is owned by two or more people on the basis of a joint tenancy, each co-
owner is treated as being entitled to the whole of that land (Burton v Camden).
There are no distinct ‘shares’, and no partition of land and no single co-owner can claim
any greater right over any part of the land than another.
When land is subject to a joint tenancy, there is only one formal title to it and that title is
owned jointly by all the joint tenants.
Bracton – Quilibet Totum, et nihil tenet (each holds everything and yet nothing).
Right of survivorship
upon a joint owner’s death, interest in joint tenancy automatically accrues to the
remaining joint tenants.
Joint tenant who passes away falls out of the joint tenancy.
Cannot pass interest in will under a joint tenancy.
No formal conveyance or written document is needed to reflect the new status quo.
Gould v Kemp (1834), in order to pass property on death, the joint tenancy must have
been brought to an end before death – usually by being severed and turned into a
tenancy in common.
(Scarle v Scarle (2019)) – where it is not possible to determine which of the joint tenants
died first, statute determines that the youngest died last.
Four unities (AG Securities v Vaughan (1988)
1. Unity of Possession
Each tenant is entitled to physical possession of the whole land. (Chun v Ho
(2001).
Each JT has the right to participate fully in the fruits of possession – e.g. receipt
of rents and profits derived from the land.
There can be no physical diversion of the land and no restriction on any joint
tenant’s use of each and every part of the land
However, statute has modified this, one joint tenant can be excluded from the
land on terms and conditions (s.12 and 13 TOLATA).
, 2. Unity of interest
Each JT’s interest in the property must be of the same extent, nature and
duration.
All be JT of freehold or of leasehold.
Different qualities of rights are inconsistent with the nature of JT as a single
owner, joint owned.
3. Unity of title
Each JT must derive their title from the same conveyance documents.
Exception is present – e.g. lease holders JT – even when signed different
documents – reflecting true nature of the agreement.
Matter of substance not form (Antoniades v Villers (1990 – the court decided
that as a matter of law, the two joint tenants derived their title from the same
document, even though there was more than one piece of paper).
4. Unity of time
Interest of each JT must arise at the same time as befitting their ownership of a
single title.
Tenancy in common
Two or more people own land under a tenancy in common, it is often said that
they have an undivided share in land.
Tenancy in common can point to a precise share of the land (despite it being
undivided)
Each co-owner has a distinct and quantifiable share in the land.
Unity of possession must be present for tenancy in common to exist, no other
unity is mandatory.
Right of survivorship does not apply – co-owner can leave his share on death or
may otherwise deal with it during his life.
May be the result of ‘severance’ of a joint tenancy.
Imposition of a trust
All co-ownership operates behind a mechanism whereby the formal legal title is held by
joint tenant trustees on the statutorily imposed trust of land.
The real equitable interest takes effect behind this trust and may be either a joint
tenancy or a tenancy in common.
This trust is effectively defined in s.34 and 36 of the LPA 1925 and Part I of TOLATA
1996.
The trustees will hold the land for the persons interested in it and subject to any express
terms of the trust and statute, with the powers of an absolute owner.
Legal title
The maximum number of legal co-owners are 4 (s.34 TA 1925), in case of more than four
co-owners, first four co-owners mentioned will be trustees, minor and insane co-owners
cannot be trustee, with all five or six and so on, owning in equity as either JT or TIC.
, There should be at least two people holding the legal title to aid in overreaching upon
subsequent transactions of the property.
Legal title can only be held as a joint tenancy (ss.1(6) and 34 LPA 1925).
Equitable title
Equitable title holds a beneficial interest in the property.
Equitable title can be held as a joint tenancy or a tenancy in common by an unlimited
number of people.
If any one of the unities of interest, title or time are absent, a joint tenancy in equity
cannot exist, in such a case, there must be a tenancy in common.
A joint tenancy in equity, can be severed to create a tenancy in common.
Methods of severance are outlined in s.36 LPA 1925 (Williams v Hensman (1861).
Where all four unities are present, equitable title could be held as either a JT or TC.
1. is there an express declaration as to how the equitable title is to be held?
Yes
the express declaration will prevail (Pink v Lawrence (1977).
If the original conveyance to the co-owners stipulates expressly that they are JT or TIC of
the beneficial or equitable interest, this is normally conclusive as to the nature of their
co-ownership in equity (Goodman v Gallant (1986)).
If the relationship of beneficiaries is declared, the declared relationship will be final
relationship.
Unless the written document is fraudulent (S v J 2016).
However, the declaration must be in written form as per s.53(1)(b) LRA 1925.
Roy v Roy (1996)
an express conveyance to P and D jointly was held conclusive between them as to the
existence of a joint tenancy, despite the fact that D had contributed significantly more to
the purchase and upkeep of the property over the years, and that P had lived in the
property for only a few months just after it was purchased.
No
the presumption is that equity follows the law, thus, Joint Tenancy (Cowcher v Cowcher
(1972).
Unless there is evidence to rebut that presumption, in which case a tenancy in common
will exist,
1. Presence of words of severance (express or implied),
‘In equal shares’ indicates an intention that equitable owners have undivided
shares in the property rather than being seen together as a single entity. (Payne
v Webb (1874)),
‘To be divided between’ (Fisher v Wigg)
‘Our ownership is in equal shares’ (Payne v Webb)
‘We own this property equally’ (Leweu v Dodd)
‘This property is to be divided between the two of us’ (Peate)
2. Unequal contributions to the purchase price,
