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Week 5 Co-ownership - Coggle Diagram

- - - - co-owner is henceforth characterised as an undivided aliquot portion of the tenancy in common
  - - - Section 59
  - - - Rasmanis v Jurewitsch [1968] 2 NSWR 166
      - Re Stone [1989] 1 Qd R 351.
      - Trojia v Trojia (1994) 33 NSWLR 269
- - - - Brickwood v Young (1905) 2 CLR 387
      - Ryan v Dries (2002) 10 BPR 19,497
        
        As to the issue of maintenance costs incurred by one co-owner
  - - - constructive ouster
        
        Biviano v Natoli (1998) 43 NSWLR 695
      - quantum of occupation rent
        
        Callow v Rupchev [2009] NSWCA 148
  - - - ‘…whether one of two tenants in common could create an easement, binding on the other tenant in common and successors in title, under which a neighbour was permitted to erect and use a toilet on the co-owned land.
      - A joint tenant, or tenant in common, can encumber his interest in the land so as to compel his co-owner to submit to the encumbrance if the encumbrance does not interfere with the right of the co-owner…possession of the land and his other rights with respect to the land.’
- - - - Construction of dispositions of property to 2 or more persons together
      - supports the notion of tenants in common
    - - Torrens system will register interest as tenants in common unless otherwise instructed
  - - - 3 traditional circumstances where equity presumed a tenancy in common
        
        • mortgagees
        
        • partnerships
        
        • unequal contributions to purchase price
  - - - Part 5 - Concurrent interest-co-ownership
        
        ss 33 - 37B
    - - presumption of joint tenancy does not apply to dispositions for partnership purposes. - see s 36
    - - ‘In registering an instrument transferring an interest to co-owners, the registrar must also register the co-owners as holding their interests as tenants in common or as joint tenants.
      - under s 56(2) if the instrument doesn’t specify the type of co-ownership, the presumption of tenancy in common is operative.
    - - ‘The result was that on the death of man, his de facto… of 31 years received only her own half share and his estranged wife was entitled to his half share in the property.’
        The rule that equity follows the law means that ‘equity follows statute law for the time being’
- - - - The remedy of partition is different to the remedy of sale.
- - - - Joint Tenancy
        
        Each person concurrently owns 100% of the fee simple
        
        4 unities
        
        Unity of time
        
        the title of the joint tenants (i.e. the owners of the land) must vest and be created at the same time.
        
        Unity of possession
        
        the joint tenants are entitled to possess the whole of the land.
        
        Unity of title
        
        the title of the joint tenants must come from the same document and by the same act of the grantor of the interest
        
        Unity of interest
        
        the joint tenants must hold the same interest in the land
        
        Right of Survivorship
        
        The right of survivorship, or the jus accrescendi, is the right is all joint tenants to enlarge their notional share on the death of a co-joint tenant.
        
        Corrin v Patton (1990) 169 CLR 540
        
        One consequence of the right of survivorship is that it prevents the deceased co-owner leaving his or her share by will...
        
        Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2
        
        The rights of joint tenants were described by Deane J in Corrin v Patton (1990) 169 CLR 540 at 573 as the “gamble of the tontine”.)
      - Tenancy in Common
        
        No right of survivorship
        
        Each owner has distinct /separate share of the property
        
        For example, 4 owners each owning 25% (1/4 share) of the property
        
        the land is not physically divided in terms of the interest held
        
        This type ownership can be complicated as each tenant has a right to occupy the land in common with the other owners.
        
        PLA s 35 - presumes in favor of tenants in common unless it unequivocal that it is a joint tenancy
        
        each owner holds their interest by way of a discrete and specific interest, there remains unity of possession so that all tenants own the land as a whole
      - The categories of joint tenancy and tenancy in common have proved inadequate to distribute rights and responsibilities through ‘vertical’ communities.