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CO-OWNERSHIP - Coggle Diagram
CO-OWNERSHIP
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When land is owned jointly, a trust of land is imposed (s. 1, TOLATA)
LEGAL TITLE
The legal title can only be held by a maximum of four trustees. All four must be Sui juris (18+ and of sound mind).
Therefore, if land is transferred to more than four people, the first four named who are sui juris will be the legal title holders.
Legal title must be held as joint tenants. (this means the four unities must be present and the right of survivorship applies)
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Four Unities
- Unity of possession
- Unity of title
- Unity of interest
- Unity of time
Survivorship
Where there are two or more joint tenant, on the death of one, the interests accrues to the remaining survivors.
EQUITABLE
TITLE
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Where there no express declaration or specific wording, the equitable title will be held as joint tenant (if the four unities are present) unless a rebuttable presumption of tenancy in common applies.
A rebuttable presumption of tenancy in common applies where;
- the land is a business asset; or
- the purchase price of a non-domestic property has been paid in unequal shares
SEVERANCE
It is not possible to sever a legal
joint tenancy, only an equitable one.
Severance can be done in one of two ways:
- Notice in writing; or
- Other acts or things
Severance must take place during the
joint tenant's lifetime. Making a will does
not sever a joint tenancy as it takes effect
after death, whereas survivorship takes
effect upon on death.
If a tenant successfully severs the equitable joint tenancy, they will hold a tenancy in common which is an equal share based on the number of former joint tenants not on the proportion of contributions made to the initial price.
Notice in writing:
There are no formalities to be observed. It does not even need to be signed.
It must, however, demonstrate an unequivocal and irrevocable intention to sever the equitable joint tenancy immediately.
Notice must be served on all equitable joint tenants in order to sever the joint tenancy. Any existing equitable tenants in common need not be served.
If a notice is saved by postal delivery, and not returned undelivered, then it will be deemed served at the time a registered item would in the ordinary course of events be delivered. s. 196(3)-(4), LPA 1925
Note: Notice is deemed to have been served when it has been delivered, it need not have been received or read.
Other acts or things:
- Unilateral act by one joint tenant
- Mutual agreement
- Mutual conduct
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Mutual Agreement
All equitable joint tenants must agree that one person's interests be severed.
The agreement need not amount to a specifically enforceable contract, it need only serve as an indication of a common intention to sever.
Mutual Conduct
This occurs when the parties embark on a course of dealings which demonstrates that they are treating their shares in the property as separate. May include ongoing negotiations.
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