Lecture 11: Co-ownership and trusts of land
What is it? Two or more people can hold the same interest in one piece of property. In every case of co-ownership, you have a
trust of land. I.e. in every situation of right by virtue of a constructive trust then you will have a situation of co-ownership.
Context and definition:
1. The proper nature of the trustee/beneficiary relationship: what are the roles/rights/ responsibilities of the trustee and
beneficiary?
o Trustee: their role is simple – to manage the land, they have the powers of management, responsibility, they
make all the decisions. There are of course controls on how they exercise their decision-making role. Must
exercise these powers in a fiduciary manner (strict good faith for your beneficiaries). They are the registered
proprietors (in a situation of Constructive Trust). Generally, trustee and beneficiary tend to be the same person.
o Beneficiary: their rights are recognised in equity. They have a right to the use and enjoyment to the piece of
land. They have the right to occupy the land.
Types of co-ownership:
1. Successive interests: if I leave my property to my child for his life with the remainder to the law school, i.e. they will
succeed on the child’s death.
2. Concurrent interests: (main one) where two or more people own the property at the same time, e.g. Stack v Dowden.
They had a concurrent interest, owned the property at the same time. This is the interest that a constructive trust will give
rise to, but can also arise expressly or by implication. Two ways in which a concurrent interest can be held:
a. By a joint tenancy (hold), or;
b. By a tenancy (hold) in common
The key point: where two or more people co-own real property, either concurrent or successive, there will always be a trust either
express or implied. It will be a trust of land.
I. Evolution in landholding:
The different ways in which we hold land. At 20 th, most people rented (90-ish%). So, we move (note that before if you owned
land, it was to sell):
1. From renting to owning
2. From house for sale to home, ownership was regarded as the norm.
Generally, when you bought a home back in those days, it would be the male who held the legal title. Also, once you have joint
owners at law, you have a trust of land.
Under the Trust of Land Act 1996, the trustees broadly now have a duty to manage the property and the beneficiaries have the
right of occupation. No longer any duty on a trustee to sell a property. No duty to sell.
II. Formalities – Section 53, LPA 1925
If you are going to create a trust of land, then there must be: a Declaration of Trust, manifested and proved by writing. If you don’t
comply with that, then you have resulting, constructive and implied trusts.
Section 53: Instruments required to be in writing.
(1) Subject to the provision hereinafter contained with respect to the creation of interests in land by parol—
…
(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by
some person who is able to declare such trust or by his will;
…
(2) This section does not affect the creation or operation of resulting, implied or constructive trusts.
What is it? Two or more people can hold the same interest in one piece of property. In every case of co-ownership, you have a
trust of land. I.e. in every situation of right by virtue of a constructive trust then you will have a situation of co-ownership.
Context and definition:
1. The proper nature of the trustee/beneficiary relationship: what are the roles/rights/ responsibilities of the trustee and
beneficiary?
o Trustee: their role is simple – to manage the land, they have the powers of management, responsibility, they
make all the decisions. There are of course controls on how they exercise their decision-making role. Must
exercise these powers in a fiduciary manner (strict good faith for your beneficiaries). They are the registered
proprietors (in a situation of Constructive Trust). Generally, trustee and beneficiary tend to be the same person.
o Beneficiary: their rights are recognised in equity. They have a right to the use and enjoyment to the piece of
land. They have the right to occupy the land.
Types of co-ownership:
1. Successive interests: if I leave my property to my child for his life with the remainder to the law school, i.e. they will
succeed on the child’s death.
2. Concurrent interests: (main one) where two or more people own the property at the same time, e.g. Stack v Dowden.
They had a concurrent interest, owned the property at the same time. This is the interest that a constructive trust will give
rise to, but can also arise expressly or by implication. Two ways in which a concurrent interest can be held:
a. By a joint tenancy (hold), or;
b. By a tenancy (hold) in common
The key point: where two or more people co-own real property, either concurrent or successive, there will always be a trust either
express or implied. It will be a trust of land.
I. Evolution in landholding:
The different ways in which we hold land. At 20 th, most people rented (90-ish%). So, we move (note that before if you owned
land, it was to sell):
1. From renting to owning
2. From house for sale to home, ownership was regarded as the norm.
Generally, when you bought a home back in those days, it would be the male who held the legal title. Also, once you have joint
owners at law, you have a trust of land.
Under the Trust of Land Act 1996, the trustees broadly now have a duty to manage the property and the beneficiaries have the
right of occupation. No longer any duty on a trustee to sell a property. No duty to sell.
II. Formalities – Section 53, LPA 1925
If you are going to create a trust of land, then there must be: a Declaration of Trust, manifested and proved by writing. If you don’t
comply with that, then you have resulting, constructive and implied trusts.
Section 53: Instruments required to be in writing.
(1) Subject to the provision hereinafter contained with respect to the creation of interests in land by parol—
…
(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by
some person who is able to declare such trust or by his will;
…
(2) This section does not affect the creation or operation of resulting, implied or constructive trusts.
