1 QUESTION: In 1998 Ahmed, Belinda, Chloe, David and Eugenie purchased a house together, which was called Greenacres.

Greenacres was registered at the District Land Registry Office. All contri uted to the purchase price. In 1999 Ahmed mortgaged his respective share in the property in writing to !avier. In !!! Eugenie had an argument with the others and "oved out stating she was going a#road for five years and would return in !!$ "or her share o" the mone#. In !! Chloe $rote to Ahmed, Belinda and David stating that she agreed to leave her share in Greenacres in her will to the Southam%ton Dogs &ome. In !!% David contracted to sell his share in Greenacres in writing to Sonal. Recently, Ahmed' Belinda and Chloe were (illed in an accident. Eugenie has returned fro" a#road to live in Greenacres and is de"anding a sale of the property in order to reali&e her interest. David is re"using to sell the property. 'dvise on the devolve"ent of #oth th e legal and e)uita le title. Advise Eugenie whether Greenacres can #e sold and, if so, whether any precautions should #e ta(en #y a purchaser. ')*+,R- .he Co o$nershi% of Greenacres #y 'h"ed, /elinda, 0hloe, David and ,ugenie has given rise to issues of severance that need to #e resolved in order to "a(e a final deter"ination of the interests, #oth legal and e1uita#le, that each person holds in the property. Only then can we properly advise ,ugenie if Greenacres can #e sold in order to release her interest of Greenacres 'll five have contri#uted to the purchase of Greenacres #ut the Law Property Act 19 $ *ec. 1234 clearly states that a legal estate cannot e5ist in undivided shares. /y *ec. 6%2 4 of the 'ct the legal title to land can #e vested in a "a5i"u" of four persons #ut, once shared, it "ust #e held as a 7oint tenancy. /y operation of *ec. 6%2 4 of the Trustee Act 1925, only the first % 2four4 persons na"ed on the conveyance will #e dee"ed as the legal owners of the property under a 7oint tenancy and, in creating a trust of land, they will hold the legal title on trust for the #enefit of all the #eneficiaries including the"selves. In our case therefore 'h"ed, /elinda, 0hloe and David hold the legal title to Greenacres as trustees of the e1uita#le interest for all five. ,ugenie is not a trustee #ut holds an e1uita#le interest in Greenacres.

Joint Tenancy or Tenancy in Common?

.he distinction #etween an e1uita#le 7oint tenancy and a tenancy in co""on is significant. In a 7oint tenancy all parties own a full and undivided interest in the property. 8pon the death of an e1uita#le owner, the right of survivorship auto"atically operates to vest the deceased9s interest in the re"aining e1uita#le owners. *ection 632 4 of the Law Property Act 19 $ prohi#its any severance of a legal 7oint tenancy. .he case of *illiams v &ensman still holds as authority that severance of 2an e1uita#le4 :oint .enancy need not #e in writing; it can #e severed #y conduct and #y any one of several "eans including- <an act of any one of the persons interested operating upon his own share= #y "utual agree"ent9 or <#y a course of dealing.9 In a tenancy in co""on only the unity of possession need #e present and, following the case of +Bull v Bull,, each e1uita#le owners have a 1uantifia#le share of the property 2proportional to their contri#ution4 and, as such, is free to deal with or dispose of their interest in the property without any encu"#rances.

2 .he facts of the case do not e5plicitly reveal e1ual "onetary contri#ution, #ut #ased on other infor"ation provided and issues raised as to severance, testa"entary disposition and the right of survivorship, we can infer that the e1uita#le ownership of Greenacres co""enced as a 7oint tenancy.

Ahmeds Mortgage:
8nder the law of trusts, 'h"ed, as a 7oint trustee of Greenacres, cannot deal with the legal title of the property without the agree"ent of the other trustees. 's in the case of Bankers Trust v Namdar, he is, therefore, only dealing with his e1uita#le title and, #y "ortgaging part of the property, has effectively severed his e1uita#le 7oint tenancy fro" that of /elinda, 0hloe and David. .he legal title of the property is unaffected #ut 'h"ed now #eco"es a tenant in co""on, with his one>fifth share of the e1uita#le title #eing held against the "ortgage #y ?avier. /elinda, 0hloe, David and ,ugenie are still, at this point, 7oint tenants, in e1uity, of four>fifths of Greenacres.

Eugenies Move:
,ugenie9s "ove fro" the household does not, pri"a facie, #rea( her unity of possession with the others, however, as found in @ens"an, her e5pression of a desire to act upon her share, al#eit in the future, i"plies her wish to sever her interest. 's in the case of Burgess v- .a$nsle#, this will #e sufficient to separate her co ownership fro" that of the others so that ,ugenie9s e1uita#le interest will now #e held as a tenant in co""on. @er e1uita#le share and title in Greenacres has not #een altered.

Chloes attempted Testamentary Disposition:

+hile 0hloe9s letter argua#ly evidences an intention to operate upon her share, Gould v /em%, holds that the passing of a share #y will is unenforcea#le in a 7oint tenancy. Aurther, as a "ere agree"ent to leave so"ething in one9s will is not enforcea#le, as we have no evidence that 0hloe too( any further action to give effect to such a disposition, I su#"it that 0hloe did not sever her 7oint tenancy. /oth her e1uita#le and legal titles re"ain unchanged.

Davids Contract for Sale:

.he written contract for sale, in effect an <estate contract9, #etween David and *onal, is valid only if it "eets the re1uire"ents of *ec. of the Law of Broperty 'ct 2Ciscellaneous Brovisions4 'ct 1989. 'ssu"ing that their contract fulfils these re1uire"ents, the effect is that David has severed his 7oint tenancy and passed e1uita#le title of his oneDfifth share in Greenacres to *onal. 't this stage the various interests and titles in Greenacres are as follows1. 'h"ed, /elinda 0hloe and David still hold the legal title to Greenacres. . 'h"ed is now a tenant in co""on with his oneDfifth e1uita#le share held #y ?avier against the "ortgage.

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6. *onal has ac1uired e1uita#le title to a oneDfifth share in the property and %. /elinda and 0hloe are still 7oint tenants with a twoDfifths e1uita#le share in Greenacres.

The death of Ahmed !elinda and Chloe:

8pon the death of 'h"ed, /elinda and 0hloe the right of survivorship ta(es effect auto"atically; vesting legal and e1uita#le title in the re"aining 7oint tenants. .his "eans that David would now #e the sole owner of the legal title to Greenacres. 'h"ed9s e1uita#le title 2and his "ortgage lia#ility4 would pass according to his will or, if he died in testate, to his ne5t of (in. 8nder the right of survivorship, if 7oint tenants die at the sa"e ti"e, and no surviving 7oint tenants re"ain, then the youngest of the deceased is presu"ed to have outlived the others. .he full title relating to the 7oint interest will pass to their estate. ,ugenie "ay therefore wish to pursue a clai" for a three>fifth share of the e1uita#le title in Greenacres E #eing her one>fifth and the two>fifth share of /elinda and 0hloe9s interest. 8nless she successfully disproves the severance of her 7oint tenancy, then /elinda9s and 0hloe9s e1uita#le title will pass according to the right of survivorship.

Advice to Eugenie:
.he .rusts of Land and 'ppoint"ent of .rustees 'ct 1993 2<.OL'.' 199394 has repealed the old rules of the 19 $ legislation so that land held 7ointly can no longer #e held under a strict settle"ent or an auto"atic trust for sale. In order to realise her interest in Greenacres ,ugenie will have to "a(e application to the court under s. 1% of the 'ct for a deter"ination of her interest and for an order of sale to release this interest. In an atte"pt to deter"ine her interest a court would follow the guidelines laid out in s 1$ 214 of the act giving regard to the intentions of the purchasers, the purposes for which the property was purchased and the interests of any secured creditors. .he court would also apply precedent of cases such as Midland Bank plc v Cooke F199$G % 'll ,R $3 and would8nderta(e a survey of the whole course of dealing #etween the parties relevant to their ownership and occupation of the property and the sharing of its #urdens and advantages. In co"ing to a decision the court will.a(e into consideration all conduct which throws light on the 1uestion what shares are intended. In this case the court would grant an order for sale of Greenacres as a "eans of realising the various interests in the property. 's David had previously contracted to dispose of so"e of his interest in Greenacres a court would not li(ely find any e5ceptional circu"stances "itigating in his favour against the sale of the property. @aving regard to the conduct of the parties and applying the rules of e1uity, the court "ay #e "inded to i"ply or presu"e the creation of a tenancy in co""on upon the initial purchase of Greenacres. In this way they could "a(e allocations to the respective interested

4 individuals and estates #ased on the proportional contri#utions "ade towards the purchase of Greenacres. 'ny purchaser of property should ta(e precautions #y "a(ing en1uiries and paying visits to the property in order to deter"ine the e5istence of any e1uita#le interests not reflecting on the register. 8pon purchase, further precaution should #e ta(en to register their charge at the Land Registry. 0lease note: .he a#ove essays and dissertations were written #y students and then su#"itted to us to display and help others. .han(s to all the students who have su#"itted their wor( to us. H8,*.IO)- in !!9 'nna announced her intention to leave /uc(ingha" 0ottage #ecause she and her son were going to set up ho"e in the flat #elonging to her new partner :a"es. /rian 2an e5isting co>owner4 therefore agreed to #uy 'nnaIs interest in /uc(ingha" 0ottage. @owever, when :a"es changed his "ind, 'nna and /rian did not proceed with the sale. Is 'nna in declaring her intention to sever sufficient to constitute a severance of the 7oint tenancyJ I a" aware that in Burgess v .a$nsle# the failed negotiation of pricing was ignored and held that severance did occur. /ut in the scenario a#ove, does the fact that they #oth agreed to a#andon the sale "ean that there is no intention to severJ 'lso, 'nna and /o# are 7ust of % 7oint tenants in the scenario, does this have any i"pact on the resultJ 2i.e. "ust they also agree with the other :oint .enancy9s I have not "entionedJ4

QUESTION: 1. 0an we say that Land 0harges 'ct, 19K was successfulJ . Distinction #etween legal and e1uita#le interests. 6. Discuss the pro#le"s prior to 19 3, especially e1uita#le interests. ')*+,R- Brior to 19 3, the conveyancing syste" in ,ngland and +ales was under considera#le strain. Burchasing of land were faced with "any difficulties when trying to esta#lish whether any other person had rights or interests in that land and an owner of e1uita#le interest in that land. .o "eet #oth of these pro#le"s, it was decided to "a(e registration of land where all titles and interests in land would #e recorded and guaranteed #y the state. .he result was L0' 19 $ 2now L0' 19K 4 which was intended to operate for only 6! years. .he L0' 19K is so"ething of a hy#rid. It adopts so"e of the rules of the old co""on law. @owever, unli(e "ost legal rights, "any e1uita#le rights would not appear to the purchaser on physical inspection of the property. .o deal with these pro#le"s, the Land 0harges 'ct replaced the co""on law doctrine of the #ona fide purchaser of the legal estate for value without notice. .he *che"e of Land 0harges 'ct 19K is "uch "ore straightforward. 0lasses '>A of L0' are statutorily defined and were intended to cover "ost of the e1uita#le interests that could #e created in land after 19 3.

5 *ection 6 of L0' provides that La land charge should #e registered in its appropriate class against the na"e of the estate owner whose land is to #e #ound #y the charge.M .he general purpose of this re1uire"ent for registration is clear enough. *ection % of L0' provides that Lif the owner of an e1uita#le interest has not registered their interests as a land charge, it will #e void against a purchaser of the landM. 'n ,1uita#le Interest that should have #een registered as a 0lass 0 2iv4 or 0lass D. If an e1uita#le interest is correctly registered, it will #e #inding on any purchaser of the land as stipulated in *ection 198 of the Law of Broperty 'ct 19 $. It should #e noted that this point that even an unregistered e1uita#le interest is #inding against so"eone who is not a purchaser, such as an adverse possessor, or the person who in fact provides no purchase "oney.