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CONCURRENT OWNERSHIP - Hand Me Notes

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					             CONCURRENT OWNERSHIP: CO-OWNERSHIP
Distinction between joint tenant and tenant in common is important because of laws of survivorship:
- If they are JT, when one dies then the other becomes the owner of the entire property
- If they are TiC, when one dies their interest in land will devolve according to the terms of the will

IS THE ARRANGEMENT A JT OR A TIC?
AT LAW
- There is a presumption that where land is conveyed to two or more persons as co-owners, they take that land as JT.
- However this can be rebutted if:
         o Not all four unities are satisfied
                   Possession: Don’t have to physically be there, wider meaning of possession
                   Interest: of each JT is identical in terms of:
                           Nature – both hold fee simple
                           Duration – interest lasts for the same amount of time
                           Extent – interest for same amount of whole, not 1/3 share & 2/3 share
                   Title: parties must derive title under same document
                   Time: JTs interest is conveyed to them at the same time
         o Words of severance are used
                   Indicating that co-owners are to take distinct shares of the property
                   ‘share and share alike’ ‘in equal share’ ‘equally’ all suggest TiC
                   ‘jointly’ held to be JT
                   Where the words are contradictory (ie. ‘equally as JT’
                           Look to intention of the grantor (Re Barbour)
                           As a last resort, apply the rule of construction: in a deed the first word prevails and in a will
                               the last word prevails
IN EQUITY
- Though JT at law, equity may hold that the arrangement is a TiC
- In situations of…
         o Unequal contribution to purchase price
                   If 2 or more purchasers hold the legal fee simple as JT but have contributed to the purchase price,
                      equity will deem each party to have a distinct share equal to the proportion of that contribution (Bull
                      v Bull)
         o Mortgage
                   Where 2 or more persons advance money on the security of a mortgage, whether in equal or unequal
                      shares, then in equity they are deemed to hold their interest as TiC
         o Partnerships
                   Where partners acquire land for the purpose of their partnership there is a presumption that they
                      hold the land as TiC (Lake v Craddock)
     …equity will presume that there is a TiC in equity

IF THERE IS A JT, IT CAN BE SEVERED
Severance used to describe the means by which a JT is converted into a TiC
- ALIENATION
        o If one JT alienates, the JT is severed and there is now a TiC between the remaining tenant and the party who
              acquired the interest
        o TOTAL
                     At law have to comply with requirements of writing (s. 33(1) PLA deed)
                     In equity need a specifically enforceable contract, declaration of trust or incomplete gift
        o PARTIAL
                     Situations where only part of an interest in land is alienated
                     Need to pass on an estate, not just an encumbrance
                     Mortgages
                              Torrens: no
                              General law: will sever JT. If the mortgage owner dies, his equity of redemption goes to his
                                 deceased estate and passes under his will (Lyons v Lyons)
                     Leases
                              If both parties are trying to lease, then it will not sever the JT
                              When one party is leasing, it will suspend the JT as leases come to an end
                                     o If the leasor JT dies during the lease, the rules of survivorship still apply but don’t
                                        come into effect until the expiration of the lease
- MUTUAL AGREEMENT TO SEVERE
        o At law, must do it by deed
        o At equity, must satisfy s. 4 of SoF or have sufficient act of part performance
- COURSE OF DEALING
        o From the actions of the parties it is clear that the parties regard themselves as TiC not JT
                                                            =
IF IT HAS BEEN SEVERED, THE PARTIES AS TENANTS IN COMMON AND THE SHARES IN THE PROPERTY DEVOLVE ACCORDING TO THE WILL
IF IT HAS NOT BEEN SEVERED, THE RIGHT OF SURVIVORSHIP APPLIES AND THE PROPERTY WILL PASS, AFTER THE DEATH OF A JOINT
TENANT, TO THE OTHER JOINT TENANT/S

RIGHTS AND OBLIGATIONS
- DUTY TO PAY RENT & OCCUPY
        o Co-owner in sole occupation is generally not required to pay rent to non-occupying owners. Except:
                 OCO wrongfully excludes other co-owners
                 OCO agrees with other co-owners to pay rent
                 OCO seeks from other co-owners an allowance for improvements
                          (Luke v Luke)
- IMPROVEMENTS & REPAIRS
        o At law, no requirement that co-owners who benefit from contributions made by other co-owner should make
            a contribution
        o In equity, allowance is made to a co-owner who has paid for improvements when the general rights of the co-
            owners are adjusted
- RENT & PROFITS
        o At law, co-owners are not obliged to share income generated
        o In equity, s. 27 (Statute of Anne) dictates that the party making money is only entitled to just share and
            proportion. If exceeded, co-owner is entitled to account to other co-owners
                 Limited to rent received, not personal exertions (Henderson v Eason)

				
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