Land Law - Trusts of Land and Co-Ownership
N.B. most exam qus will start with the equitable interest being held as joint
tenants, so that there is something to sever into a common tenancy.
[STEP 1]
This question involves co-ownership. When land is co-owned, a statutory trust is
imposed (s.36 LPA 1925, as amended by the TLATA 1996). We need to look at the
legal estate and equitable interest separately.
[STEP 2] How the Legal title to the land is held on the purchase of the property:
Date - Purchase of [INSERT PROPERTY]
Legal title
A ‘legal estate is not capable of subsisting or being created in an undivided share in
land’ (s.1(6) LPA 1925) so the legal title is always held as a joint tenancy.
A maximum of four trustees can own the legal estate in the land (s.34(2) LPA 1925),
normally the first four named on the deed where there is an attempt to transfer the legal
estate to more than four people.
- However, co-owners must be 18 to hold a legal estate in land (s.1(6) LPA 1925).
[INSERT MINORS’ INITIALS & AGES IN BRACKETS] cannot own the legal
estate as they are under 18.
Thus / As the proprietorship register shows, [INSERT LEGAL OWNERS AND INITIALS]
will be trustees as joint tenants with identical interests in the property of undefined
portions.
Law: (ABCD) 1/1 JTs
The line above is a summary of how ownership of the property is split between co-
owners (replace ‘ABCD’ for the first letters of their names when answering a problem
question). ‘Law’ refers to the fact we’re ascertaining how the LEGAL title is held.
[STEP 3] How the equitable interest in the land is held:
Equitable interest
,The equitable interest can be held either as a joint tenancy (JT) or tenancy in common
(TIC).
In a JT, co-owners have identical interests of non-defined portions in the property,
regardless of how much each contributes to the purchase price. In a TIC, co-owners
have separate, distinct shares in the property, although yet undivided, each for a
specific percentage ownership of the property.
N.B In the exam, if you have the proprietorship register, no need to go through the
4 tests. If there is a restriction on the proprietorship register flagging the beneficiary
trust interest (s.40 LRA 2002) by the date of registration of the buyer (s.29 LRA 2002),
equity follows the law. It can be presumed the tenants hold the equitable interest as
TICs. If there is no restriction, equity follows the law, It can be presumed that the
tenants hold the equitable interest as JTs.
[IF THERE ARE MINORS ON THE FACTS, OTHERWISE OMIT] Unlike legal owners,
there is no limit on the number of co-owners in equity and they can be under 18. Thus,
[INSERT CHILDREN] hold an equitable interest along with [INSERT ADULT
BENEFICIARIES].
Generally, there is a presumption that equity follows the law, and the equitable interest
is held as a JT. To see if the presumption is rebutted and the equitable interest is held
as a TIC, we apply the following tests:
1) Are the four unities present?
The four unities are the:
- Unity of interest - are all co-owners’ interests in the property of the same nature
and duration?
- Unity of title - did the co-owners acquire their interests in the property under the
same document?
- Unity of time - did the co-owners acquire their interests in the property at the
same time?
- Unity of possession - are the co-owners each equally entitled to use and occupy
the whole premises?
[IF CLEAR] The four unities are present. All co-owners' interests are of the same nature
and duration, acquired under the transfer deed / document in [INSERT DATE OF
PURCHASE], with each co-owner equally entitled to use and occupy the premises. The
equitable interest is capable of being held as a JT or TIC.
, Interest
DOES NOT look at the proportions, only whether the type of right is the same - i.e.
freehold/leasehold.
Title
Time
Possession
- If all unities are present, the equitable interest is capable of being held as a joint
tenancy or tenancy in common.
- If any one of the unities is missing, it is not capable of being held as a joint
tenancy.
- The only unity required for an equitable tenancy in common is the unity of
possession.
2) Does the deed contain an express declaration as to how the equitable interest is
held?
A declaration is conclusive (Goodman v Gallant). We are not shown the deed. / There is
no declaration / one stating that…
- If the title is registered, the express declaration would be included in the transfer
to the co-owners. If it is in Form TR1, any declaration would be included in
section 10
3) Are there words of severance in the deed?
Words of severance mean that the equitable interest will be held as a TIC (Robertson v
Fraser). Again, we are not shown the deed. / [USE BELOW]
- Words of severance:
- equally / in equal shares / between A and B / half to A, half to B / among A
and B
- No words of severance:
- Jointly / to A and B
- Where there is no express declaration or words of severance, apply the last test.
N.B. most exam qus will start with the equitable interest being held as joint
tenants, so that there is something to sever into a common tenancy.
[STEP 1]
This question involves co-ownership. When land is co-owned, a statutory trust is
imposed (s.36 LPA 1925, as amended by the TLATA 1996). We need to look at the
legal estate and equitable interest separately.
[STEP 2] How the Legal title to the land is held on the purchase of the property:
Date - Purchase of [INSERT PROPERTY]
Legal title
A ‘legal estate is not capable of subsisting or being created in an undivided share in
land’ (s.1(6) LPA 1925) so the legal title is always held as a joint tenancy.
A maximum of four trustees can own the legal estate in the land (s.34(2) LPA 1925),
normally the first four named on the deed where there is an attempt to transfer the legal
estate to more than four people.
- However, co-owners must be 18 to hold a legal estate in land (s.1(6) LPA 1925).
[INSERT MINORS’ INITIALS & AGES IN BRACKETS] cannot own the legal
estate as they are under 18.
Thus / As the proprietorship register shows, [INSERT LEGAL OWNERS AND INITIALS]
will be trustees as joint tenants with identical interests in the property of undefined
portions.
Law: (ABCD) 1/1 JTs
The line above is a summary of how ownership of the property is split between co-
owners (replace ‘ABCD’ for the first letters of their names when answering a problem
question). ‘Law’ refers to the fact we’re ascertaining how the LEGAL title is held.
[STEP 3] How the equitable interest in the land is held:
Equitable interest
,The equitable interest can be held either as a joint tenancy (JT) or tenancy in common
(TIC).
In a JT, co-owners have identical interests of non-defined portions in the property,
regardless of how much each contributes to the purchase price. In a TIC, co-owners
have separate, distinct shares in the property, although yet undivided, each for a
specific percentage ownership of the property.
N.B In the exam, if you have the proprietorship register, no need to go through the
4 tests. If there is a restriction on the proprietorship register flagging the beneficiary
trust interest (s.40 LRA 2002) by the date of registration of the buyer (s.29 LRA 2002),
equity follows the law. It can be presumed the tenants hold the equitable interest as
TICs. If there is no restriction, equity follows the law, It can be presumed that the
tenants hold the equitable interest as JTs.
[IF THERE ARE MINORS ON THE FACTS, OTHERWISE OMIT] Unlike legal owners,
there is no limit on the number of co-owners in equity and they can be under 18. Thus,
[INSERT CHILDREN] hold an equitable interest along with [INSERT ADULT
BENEFICIARIES].
Generally, there is a presumption that equity follows the law, and the equitable interest
is held as a JT. To see if the presumption is rebutted and the equitable interest is held
as a TIC, we apply the following tests:
1) Are the four unities present?
The four unities are the:
- Unity of interest - are all co-owners’ interests in the property of the same nature
and duration?
- Unity of title - did the co-owners acquire their interests in the property under the
same document?
- Unity of time - did the co-owners acquire their interests in the property at the
same time?
- Unity of possession - are the co-owners each equally entitled to use and occupy
the whole premises?
[IF CLEAR] The four unities are present. All co-owners' interests are of the same nature
and duration, acquired under the transfer deed / document in [INSERT DATE OF
PURCHASE], with each co-owner equally entitled to use and occupy the premises. The
equitable interest is capable of being held as a JT or TIC.
, Interest
DOES NOT look at the proportions, only whether the type of right is the same - i.e.
freehold/leasehold.
Title
Time
Possession
- If all unities are present, the equitable interest is capable of being held as a joint
tenancy or tenancy in common.
- If any one of the unities is missing, it is not capable of being held as a joint
tenancy.
- The only unity required for an equitable tenancy in common is the unity of
possession.
2) Does the deed contain an express declaration as to how the equitable interest is
held?
A declaration is conclusive (Goodman v Gallant). We are not shown the deed. / There is
no declaration / one stating that…
- If the title is registered, the express declaration would be included in the transfer
to the co-owners. If it is in Form TR1, any declaration would be included in
section 10
3) Are there words of severance in the deed?
Words of severance mean that the equitable interest will be held as a TIC (Robertson v
Fraser). Again, we are not shown the deed. / [USE BELOW]
- Words of severance:
- equally / in equal shares / between A and B / half to A, half to B / among A
and B
- No words of severance:
- Jointly / to A and B
- Where there is no express declaration or words of severance, apply the last test.
