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CO-OWNERSHIP OF LAND - Answer plan (Part one). Joint tenancy, severance, right of survivorship. - YouTube
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Hello and welcome to bite size law. I'm Amanda聽
and I'm a private tutor in land law. In this video聽聽
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I will take you through my answer to a problem聽
question on co-ownership using the IRAQ method.聽聽
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If you haven't come across IRAC before it stands聽
for Issue, Rule, Application and Conclusion and聽聽
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it's a really good technique to use when answering聽
problem style questions. I've put a brief聽聽
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explanation of how to use IRAC on the slide but聽
there is a full explanation of the technique in聽聽
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the notes this video. I've also put a copy of the聽
question that we are going to look at here too.聽聽
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So the question begins by telling us the initial聽
owners of the property and, as the facts of the聽聽
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question unfold, various things happen which聽
may have affected the ownership. What you are聽聽
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required to do is to work out who the present聽
owners are and whether they can force the sale聽聽
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of the property. so as you will discover Michael聽
and Grace are claiming to be the current owners.聽聽
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Essentially there are two main parts to the聽
question - in the first part you have to work聽聽
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out how ownership of the land has changed and聽
in the second part you need to consider how聽聽
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disputes between co-owners can be resolved聽
- in other words who can apply to court if聽聽
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co-owners disagree about selling the property聽
and whether the court is likely to order a sale.聽聽
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So here are the facts explaining the circumstances聽
surrounding the original purchase of the property聽聽
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and the facts I would pick out are that they聽
didn't contribute equally to the purchase price.聽聽
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that they were expressed to聽
be beneficial joint tenancy聽聽
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equity and that the four purchasers were all聽
registered as proprietors at the land registry.聽聽
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So the first thing I would do is to explain聽
that the land is co-owned because the four聽聽
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owners all had rights in the property which they聽
enjoyed. I would also explain the relevant law聽聽
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which explains that a trust is imposed on co-owned聽
land so the legal owners (who are the trustees)聽聽
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hold the land on trust for the benefit聽
of the beneficial owners in equity.聽聽
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And it's very easy to overlook this first point in聽
your answer as the temptation is to jump straight聽聽
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in and look at how subsequent events affected聽
the ownership. But this part is easy and so marks聽聽
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are there - ripe for the taking. Co-ownership聽
questions are very popular with students in exams聽聽
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so you need to ensure that your answer is as聽
detailed and accurate as possible to distinguish聽聽
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it from other students' answers. So I would聽
identify Tommy Arthur Polly and Esme as the聽聽
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original legal owners because the facts state that聽
they were named as the registered proprietors. And聽聽
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because they all contributed towards the purchase聽
price I would also conclude that they were the聽聽
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beneficial owners too. So my conclusion is that聽
the original purchasers were holding the property聽聽
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on trust for themselves. I would then explain that聽
there are two different types of co-ownership - a聽聽
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joint tenancy and a tenancy in common and the聽
issue now is which type of co-ownership is this?聽聽
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The four units are present (and I would briefly聽
explain what these mean) and that means that聽聽
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potentially it could be either a joint tenancy or聽
a tenancy in common. I always deal with the legal聽聽
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title first because the answer is always going聽
to be the same. The relevant rule is in section 1聽聽
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of the Law of Property Act 1925 which states that聽
the legal owners can only ever be joint tenants.
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However this rule doesn't聽
apply to the equitable title聽聽
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so the issue now is which one is it in equity?聽
I would find the relevant rule which I can apply聽聽
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to the facts. And here it is that any express聽
statement in the original conveyance regarding聽聽
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the beneficial ownership is conclusive. If we聽
apply this rule we can see that there WAS an聽聽
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express statement which confirms that the original聽
owners were joint tenants in equity. So quite聽聽
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simply if you see anything in the question which聽
states that they were beneficial joint tenants聽聽
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in equity - then they are. So the conclusion聽
is that they will join tenants in equity too.聽聽
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I would also very briefly mention that the聽
unequal contribution to the purchase price聽聽
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has no effect on the beneficial ownership here聽
because the express statement takes priority.聽聽
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And here's a tip - if you're faced with a problem聽
question on co-ownership it's very common for聽聽
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examiners to want to test your understanding聽
of how ownership can change through the process聽聽
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of severance of a joint tenancy. And severance is聽
only ever relevant where there is a joint tenancy;聽聽
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it doesn't apply to a tenancy in common. So聽
questions which require you to look at possible聽聽
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severances will usually involve an initial joint聽
tenancy in equity. And in this particular question聽聽
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it was very obvious from the facts that there聽
were possible severances which needed to be聽聽
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considered so it was very unlikely that it was聽
ever going to be a tenancy and common in equity.聽聽
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So if you believe that the question involves a聽
tenancy in common just go back and check your聽聽
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reasoning carefully to make sure that you are聽
confident that that is the correct decision.聽聽
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Now although you should avoid long explanations聽
of the law in your introduction to an answer (and聽聽
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examiners can spot a learnt generic introduction聽
a mile off!) I do think that it helps to briefly聽聽
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explain the distinction between a joint聽
tenancy and a tenancy in common here.聽聽
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And this is because it's going to be relevant聽
at several different points in my answer.聽聽
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it is however perfectly acceptable to wait until聽
you have the first possible severance or death聽聽
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before you do this. I'll leave that up to you.聽
so I would explain that the distinction is聽聽
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important because in a joint tenancy the owners聽
are not seen as owning a separate share in the聽聽
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land but that they all own it together. so when聽
one joint tenant dies, ownership of the land聽聽
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passes automatically to the survivors. whereas聽
in a tenancy in common each owner is regarded聽聽
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as having a separate share which will pass on聽
their death to the beneficiaries of their estate.聽聽
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so a tenant in common can leave their share of聽
the land to whoever they choose in their will.聽聽
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I would also very briefly introduce the concept聽
of severance at this stage by explaining that a聽聽
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joint tenant can convert their equitable joint聽
tenancy into a tenancy in common by a process聽聽
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known as severance. however I wouldn't explain聽
the different methods of severance at this stage.聽聽
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for this I would wait until a possible severance聽
occurs and then select the most relevant method聽聽
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to the facts. so now I'd explain that in order聽
to advise Michael and Grace I need to consider聽聽
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how the subsequent events affected ownership聽
of the land. and here are just some tips for聽聽
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you - first of all you must always聽
work it out in chronological order,聽聽
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secondly always plan your work and work out how聽
the ownership changes right up until the end聽聽
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before you start to write up your answer. I聽
have seen lots of exam papers where students聽聽
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have suddenly realised that they made a mistake聽
earlier in their answer and have had to delete聽聽
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long sections. it doesn't do much for your聽
confidence if you have to do this - so work it out聽聽
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and check it again. And finally if you end up with聽
truly horrendous fractions; check to see if you've聽聽
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made an error somewhere. examiners don't expect聽
you to be wonderful mathematicians so the maths聽聽
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should be reasonably basic (although聽
if you can't do fractions this probably聽聽
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isn't a topic for you to choose to answer a聽
question on an exam if you have a choice).聽聽
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the first major event to happen is聽
that Tommy moves out of the property聽聽
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and the issue is whether when a co-owner moves聽
out of a property does this have any effect on聽聽
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the ownership - in other words could it act as聽
a severance? I would explain that the common law聽聽
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in Williams v Hensman confirms that a co-owner can聽
sever his joint tenancy unilaterally by acting on聽聽
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their share of the land. in other words you do聽
something to separate your share of the property聽聽
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and that would act as a severance. but it must be聽
something which shows an intention to change the聽聽
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ownership of the property. when we come to apply聽
this - well moving out of the property on its own聽聽
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isn't sufficient to indicate that Tommy intended聽
to change the ownership. so I would conclude that聽聽
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there was no severance in January 2015. the next聽
thing to happen is that Tommy writes to all the聽聽
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other co-owners and we are told what he writes in聽
the letter. we are also told that the letter was聽聽
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delivered to the property but unfortunately聽
Arthur destroyed it without reading it.聽聽
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the main issue here is whether the letter聽
acted as a severance of the joint tenancy?聽聽
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in terms of the relevant law; section聽
36 (2) confirms that a written notice聽聽
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to all of the joint tenants can operate to sever a聽
joint tenancy. so if we apply that; Tommy's letter聽聽
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is in writing and addressed to all the remaining聽
joint tenants. so we can conclude that potentially聽聽
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the letter was a valid notice of severance. the聽
next issue we have to consider is whether the聽聽
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wording of the letter is sufficient. the rule聽
is that there is no particular form of wording聽聽
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that needs to be used but it must show an聽
immediate and unequivocal intention to sever.聽聽
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so when we come to apply that to the relevant聽
facts we need to identify the relevant wording聽聽
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from the letter. We can see that Tommy聽
wrote that it was 'a severance of his share'聽聽
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and also that he 'is now a tenant in common聽
with them so his share of the house would聽聽
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pass to Grace if anything happened to him'. It is聽
fairly safe to conclude that the letter did show聽聽
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an unequivocal and immediate intention to聽
sever. you could also add in that as he聽聽
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sought the advice of a retired solicitor the聽
notice is likely to be worded effectively.聽聽
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the next issue relates to the giving of the notice聽
to the other joint tenants - can a notice be given聽聽
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to joint tenants even if it hasn't been read by聽
any of them? the case here is Kinch v Bullard.聽聽
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in this case the court decided that so long as聽
the notice has been delivered (or 'served' as聽聽
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it's called) in accordance with section 196 Law聽
of Property Act then the notice has been given聽聽
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even if it's destroyed or intercepted before聽
the other joint tenants have actually read it.聽聽
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so we need to check to see if indeed the letter聽
was served in accordance with section 196.聽聽
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where it has been either hand delivered or sent聽
in the ordinary post, s.196(3) confirms that the聽聽
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notice is served if it is left at the last known聽
address of the person to be served. so if we apply聽聽
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that rule to the facts - well the notice had聽
been served because we know that it was sent to聽聽
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the last known address of all the other joint聽
tenants and Arthur destroyed it AFTER it had聽聽
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been delivered. so we can conclude that written聽
notice was given to all the other joint tenants.
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Wwhich allows us to reach a final conclusion on聽
this point that Tommy's lEtter was an effective聽聽
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severance of his joint tenancy. and incidentally聽
just in case you feel that the decision聽聽
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in Kinch v Bullard was harsh - in the case聽
the party who intercepted the notice was the聽聽
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party who would benefit from there not being聽
a severance (so the person who sent the notice聽聽
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was the same person who intercepted it) and they聽
would benefit from the right of survivorship.聽聽
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and this fact did weigh heavily on the court's聽
decision in the case. and when I was marking聽聽
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students' answers to this question, I was聽
very impressed to see that a few students聽聽
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were able to suggest that this might聽
possibly be a distinguishing feature聽聽
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which was considered in the case as it showed聽
that these students had read the relevant case聽聽
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extract carefully and that they were able to apply聽
it to the facts of this question. At this point聽聽
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I would now explain in more detail the effect of聽
severance on the owner's ownership of the land.聽聽
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so the relevant rules are that severance only聽
occurs in equity and that it only operates on聽聽
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that particular joint tenant's interest to convert聽
their joint tenancy into a tenancy in common.聽聽
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in other words the other co-owners remain as聽
joint tenants. The joint tenant who severs is聽聽
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entitled to a share of the land proportionate聽
to the total number of joint tenants in equity.聽聽
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so because there were four joint tenants,聽
Tommy will have a 1/4 of the land.聽聽
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now what I've done on this slide is to聽
show you how I've applied these rules.聽聽
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this is how I work out how ownership changes.聽
so this would form part of my rough notes.聽聽
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I deal with the legal title first (which is on聽
the left hand side) and the equitable ownership聽聽
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I divide into joint tenants and tenants in common.聽
so we start with the initial ownership which I've聽聽
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already explained that Tommy, Arthur, Polly and聽
Esme were joint tenants of the legal estate and we聽聽
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also know that they were joint tenants in equity聽
too. Now we have the effect of Tommy's severance.聽聽
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The legal title is unaffected because you can't聽
sever the legal estate; severance only operates in聽聽
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equity. And he becomes a tenant in common equity聽
and his share is proportionate to the total number聽聽
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of joint tenants. so because there were four of聽
them he became a tenant in common of a one quarter聽聽
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share. and remember that severance only affects聽
Tommy's share so the other three continue to own聽聽
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as joint tenants in equity of the remaining 3/4
share.
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TO BE CONTINUED .... SEE PEAKY聽
BLINDERS - PART 2. Amanda.
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