CO-OWNERSHIP AND TRUSTS OF LAND
Primarily dealing with the domestic home, including where the relationships between family
members (particularly couples) break up
Also relevant to friends, commercial investors and banks etc.
Considers values of land law (need to balance the financial investment with the emotional
attachment to land by considering both judicial, legislative and government policy)
Land can either be co-owned through a joint tenancy or a tenancy in common
Under tenancy in common, each co-owner has their own share which can be sold, mortgaged, left
in a will etc., however under joint tenancy, there are no individual shares (joint tenants collectively
own the land)
‘Each joint tenant holds the whole and holds nothing, that is, he holds the whole jointly and
nothing separately’ (Coke on joint tenancy)
Joint tenants do not have any individual share in the property (s4(6) LPA 1925)
Establishing a joint tenancy requires establishing the four unities (AG Securities v Vaughan
[1990], Corrin v Patten [1990]) and then look for either an express declaration, words of
severance or any equitable presumptions
Joint tenancy requires the ‘four unities’- possession, interest, title and time (PITT)
Each tenant must have the same right to possession (unity of possession is also the only
requirement for tenancy in common)
They must have the same interest
They must have got their interest from the same place (eg. the deed)
They must have got their interest at the same time
Doctrine of survivorship is one of the clear distinctions as it only applies in joint tenancy
Where there are multiple tenants and one dies, as they have no individual share, this cannot
be left in their will (will eventually leave one final joint tenant to have 100% of the property
to themselves)
s184 of the LPA 1925 takes a presumption in the order of seniority if joint tenants were to
die at the same time (estate passed on to youngest joint tenant’s next of kin)
Often subject to heavy litigation
Scarle v Scarle [2019]- husband and wife found together dead- next of kin of (older)
husband attempted to rebut the doctrine of survivorship (burden of proof on her to the civil
standard) but ultimately lacked the required scientific evidence
Tenancy in common can be created by severing a joint tenancy
The nature of the trust
May co-own property differently in law (as trustees) and in equity (as beneficiaries)
Trustees must always act in the best interests of the beneficiaries, who hold an equitable
interest entitling them to the benefit of the land
, Usually, when a married couple purchase land, they take the legal title (managerial powers)
as joint tenants, as well as a beneficial interest (both entitled to take the benefit from the
property)
All co-owned land in the UK involves a trust (beneficiaries and trustees are often the same
people)
Co-ownership is structured differently in law and in equity
In law, land can only be co-owned as a joint tenancy (tenancy in common at law does not
exist) due to the marketability of land (attempt to make the conveyancing process easier by
enabling the entirety of the legal title to be bought at one given point)
There can only be four co-owners at law, all of whom must be over 18
However, in equity, co-ownership can either be as a joint tenancy or a tenancy in common
and can have as many co-owners as desired, of whom need not be adults
In determining whether the equitable co-ownership is a joint tenancy or a tenancy in
common, first look for an express declaration of trust (often listed in TR1 form)
If there is no express declaration, look whether the four unities are present (only in joint
tenancy)
If the four unities are not present, equity follows the law and so must now look at intention
(at law, there will be a joint tenancy, so it is presumed that one is intended in equity also)
However, this presumption can be rebutted if intention for a tenancy in common is found
(eg. between friends or other familial relations, differing contributions to the purchase price
may indicate a tenancy in common in proportion to the contribution, particularly if bought as
an investment (Laskar v Laskar [2008])
In domestic cases where there is an intimate relationship between the parties, this requires
an unusual case in Stack v Dowden [2007] (assumption in relationships of a joint venture
and thus a joint tenancy)
Commercial parties will usually prefer to have their own individual shares (tenancy in
common- Bathurst v Scarborow [2004])
Severance
Conversion of a joint tenancy to a tenancy in common is only available in equity (not at law- s36(2)
LPA 1925)
Where not all joint tenants choose to sever, the co-owners will continue as joint tenants, provided
there are more than two co-owners
Severance is done to equality
‘It seems to us that it is of the very nature of a joint tenancy that, upon a severance, each
takes an equal aliquot share according to the number of joint tenants’ (Goodman v Gallant
[1986])
Obiter in Bedson v Bedson [1965] that, where it is the common intention and desire of the
tenants, severance can be done to unequal shares (applied in Singla v Brown [2007])
Severance is irreversible
Primarily dealing with the domestic home, including where the relationships between family
members (particularly couples) break up
Also relevant to friends, commercial investors and banks etc.
Considers values of land law (need to balance the financial investment with the emotional
attachment to land by considering both judicial, legislative and government policy)
Land can either be co-owned through a joint tenancy or a tenancy in common
Under tenancy in common, each co-owner has their own share which can be sold, mortgaged, left
in a will etc., however under joint tenancy, there are no individual shares (joint tenants collectively
own the land)
‘Each joint tenant holds the whole and holds nothing, that is, he holds the whole jointly and
nothing separately’ (Coke on joint tenancy)
Joint tenants do not have any individual share in the property (s4(6) LPA 1925)
Establishing a joint tenancy requires establishing the four unities (AG Securities v Vaughan
[1990], Corrin v Patten [1990]) and then look for either an express declaration, words of
severance or any equitable presumptions
Joint tenancy requires the ‘four unities’- possession, interest, title and time (PITT)
Each tenant must have the same right to possession (unity of possession is also the only
requirement for tenancy in common)
They must have the same interest
They must have got their interest from the same place (eg. the deed)
They must have got their interest at the same time
Doctrine of survivorship is one of the clear distinctions as it only applies in joint tenancy
Where there are multiple tenants and one dies, as they have no individual share, this cannot
be left in their will (will eventually leave one final joint tenant to have 100% of the property
to themselves)
s184 of the LPA 1925 takes a presumption in the order of seniority if joint tenants were to
die at the same time (estate passed on to youngest joint tenant’s next of kin)
Often subject to heavy litigation
Scarle v Scarle [2019]- husband and wife found together dead- next of kin of (older)
husband attempted to rebut the doctrine of survivorship (burden of proof on her to the civil
standard) but ultimately lacked the required scientific evidence
Tenancy in common can be created by severing a joint tenancy
The nature of the trust
May co-own property differently in law (as trustees) and in equity (as beneficiaries)
Trustees must always act in the best interests of the beneficiaries, who hold an equitable
interest entitling them to the benefit of the land
, Usually, when a married couple purchase land, they take the legal title (managerial powers)
as joint tenants, as well as a beneficial interest (both entitled to take the benefit from the
property)
All co-owned land in the UK involves a trust (beneficiaries and trustees are often the same
people)
Co-ownership is structured differently in law and in equity
In law, land can only be co-owned as a joint tenancy (tenancy in common at law does not
exist) due to the marketability of land (attempt to make the conveyancing process easier by
enabling the entirety of the legal title to be bought at one given point)
There can only be four co-owners at law, all of whom must be over 18
However, in equity, co-ownership can either be as a joint tenancy or a tenancy in common
and can have as many co-owners as desired, of whom need not be adults
In determining whether the equitable co-ownership is a joint tenancy or a tenancy in
common, first look for an express declaration of trust (often listed in TR1 form)
If there is no express declaration, look whether the four unities are present (only in joint
tenancy)
If the four unities are not present, equity follows the law and so must now look at intention
(at law, there will be a joint tenancy, so it is presumed that one is intended in equity also)
However, this presumption can be rebutted if intention for a tenancy in common is found
(eg. between friends or other familial relations, differing contributions to the purchase price
may indicate a tenancy in common in proportion to the contribution, particularly if bought as
an investment (Laskar v Laskar [2008])
In domestic cases where there is an intimate relationship between the parties, this requires
an unusual case in Stack v Dowden [2007] (assumption in relationships of a joint venture
and thus a joint tenancy)
Commercial parties will usually prefer to have their own individual shares (tenancy in
common- Bathurst v Scarborow [2004])
Severance
Conversion of a joint tenancy to a tenancy in common is only available in equity (not at law- s36(2)
LPA 1925)
Where not all joint tenants choose to sever, the co-owners will continue as joint tenants, provided
there are more than two co-owners
Severance is done to equality
‘It seems to us that it is of the very nature of a joint tenancy that, upon a severance, each
takes an equal aliquot share according to the number of joint tenants’ (Goodman v Gallant
[1986])
Obiter in Bedson v Bedson [1965] that, where it is the common intention and desire of the
tenants, severance can be done to unequal shares (applied in Singla v Brown [2007])
Severance is irreversible
