Trust

Two types of co-ownership;

o Joint tenancy
A better way
Instead of having shares but as owning the whole state together
so idea that co-owners are not separate group but an
inseparable group
Four requirements (also known as four unites) must be satisfied:
Time- co-owners must be acquired at the same time
Title - co-owners must acquire title at the same time eg
from same document
Interest- all co-owners must have identical interest which
includes same duration and same nature and extent
Possession- all co-owners must be equally entitled to the
possession of the whole land, if one can point at a
particular land and say that is my land then there is no
co-ownership.
Doctrine of survivorship - On death the land cant be dispose
of with a will not can it be passed on intestacy. Instead on death
the remaining joint tenants obtain the land of the diseased. This
promotes unification. Last survivor can become the sole owner
and can dispose the property as he wishes.
o Tenancy in common
Preferred cause of Tax breaks
The only requirement of this is Possession- all co-owners must
be equally entitled to the possession of the whole land, if one
can point at a particular land and say that is my land then there
is no co-ownership.
There is no doctrine of survivorship and the interests are held in
notional share and can be disposed at the time of one or more
parties.
There are four situations when a tenancy in common may arise;
Where there is unity of possession but other three unities
are missing.
Where all four unities are present but the co-owners dont
want to hold joint tenancy instead they want to hold
tenancy in common
Where all four unities are present but equity presumes
tenancy in common and this presumption in not rebutted
Where a joint tenancy is severed- where a co-ownership
starts as a joint tenancy but later becomes tenancy in
common (Stack v Dowden)

Equityo Unequal contribution equity held that these were always tenancies in common (Lake
v Gibson (1729)
This idea can be rebutted
Joint tenancies of the legal estates now give rise to joint
tenancies in equity in most domestic property.
Commercial properties are usually held in tenancy in common
as the idea of survivorship does not make it fair. (Re Fuller
contract [1933])
Where mortgages are involved then the property is held tenancy
in common. (Morley v Bird (1798))
Therefore in law where there are two tenants it will be
transparent that the tenancy is joint however in equity the
tenancy will be in common. Equity recognises this and states
that when two people hold a property they should be able to
hold it in trusts for themselves as the beneficiaries.

Legislation
o LPA 1925 and TolaTa 1996 did not cover resulting trust however this
was covered by the case of Bull and Bull 1955
S34 LPA imposes statutory trusts by stating An undivided share
in land shall not be capable of being created except as provided
by the Settled Land Act, 1925, or as hereinafter mentioned
S34 (1) LPA states that an undivided share cannot be held in
legal estates as a result trusts in common have been subjected
to equity
S34 (2) LPA imposes trusts for tenancies in common
S36 (1) LPA imposes trusts for joint tenancies
S1(6) LPA states that a land interest cannot be held by a minor
or infant
Under TOLATA 96 makes the trusts of land and makes it easier
to interpret
o The Trustees Act 1925 states that no more than four trustees can be
appointed according. Therefore the first four names on the register hold
the property from themselves and other co-owners.

Creation of Joint tenancy and tenancy in common

o All new co-ownerships will be joint tenancy even though in equity
tenancies-in-common will be recognised.
o Express declaration
Here word of severance are key the wording will indicate
whether a tenancy is joint or in common.
Word of severances which led to the recognition of tenancy in
common include:

 in equal share Payne v Webb 1874

equally Lewen v Dodd 1595
share and share alike Heathe v Heathe 1740
to be divided between Peat v Chapman 1750
between Lashbrook v Cock 1816
In case of Unreg land the estate in legal terms held by joint
tenant for themselves and others
In case of reg land there is a box which the title owner must tick
inorder to declare the property held as trust.
o Implied declaration
There is a presumption that where there is not expressed words
to indicate the trust then the position is that equity will follow law;
if the estate is joint tenancy (pro 1925 all properties) then in
equity the estate is also joint tenancy. (lady Hale in Stack v
Dowden2007)
There are certain situations where equity will not follow the law;
these are business partners, mortgages and unequal
contribution of down payment of a property. Equity will also infer
tenancy in common when there is no intention by the parties for
the estate to be held as tenancy in common (Malayan Credit Ltd
v Jack Chia MPH Ltd 1986).
o Commercial property and Family house
Family house- is now held as joint tenancy unless the
presumption can be rebutted and contrary can be shown.
Commercial property where there is unequal contribution will be
held as tenancy in common unless the presumption can be
rebutted and contrary can be shown.

Severance of joint tenancy

o S34 (1) LPA states that No severance of a joint tenancy of a legal
estate, so as to create a tenancy in common in land, shall be
permissible so joint tenancy states as joint tenancy even though joint
tenancy turns into tenancy in common in equity.
o However it is possible to change a joint tenancy into tenancy in
common in equity, under S36 (2) LPA (as amended by TOLATA), the
person serving the joint tenancy has to give notice in writing or do
such other acts or things as would, in the case of personal estate, have
been effectual to sever the tenancy in equity:
Notice in writing- the letter must be given to all the joint tenancy
and must be left at their known address, even if the notice is not
read (Kinch v Bullard and Grindal v Hooper)
do such other acts or things as would, in the case of personal
estate, have been effectual to sever the tenancy in equity

An act..operating upon his own share- i.e. acting when a

joint tenant is bankrupt. (Williams v Hensman 1861)
Mutual agreement (Re Woolnough [2002])
An act which shows the interest of all were mutually treated as
constituting a tenancy in common (Burgess v Rawnsley 1975)
Forfeiture- where one tenants kills another out of greed to gain a
full chance of gaining the whole estate (in the estate of Hall
[1914])

Co-owners
Is one co-owner able to sell the property against the wishes of the other?
o If one co-owner wants to sell, he needs court order under s14 of
TOLATA 96.
Does one co-owner have the right to exclude the other from the property?
o When there is a resulting trust then one estate interest cannot evict
the other Bull v Bull 1955
o This is no longer a problem under TOLATA because trusts are now
linked with land not trusts of sale.
Can one co-owner be required to pay rent to the other?
o If party A has paid charges on the house then it can charge party B
occupation charges

Ending Co-ownership
o Partition is given under s7 (1) TOLATA
o Sale of property and division of the proceeds under S14 of TOLATA
o On death
o By agreement

Control over exercise of trustees powers

o Exclusion and restriction of powers by settlors s8 (1) of TOLATA
allows settlor to exclude the powers contained in ss 6 and ss 7 by
making express provision in the disposition which creates the trust.
o S61 TOLATA offers powers to trustees.