Here you will find summarised property law notes for the entire Monash University topic (Both Property A and Property B).
The summary notes are an excellent exam help, with steps to work out whether a particular issue is found in a problem question, and relevant precedent and case citations for that HD answer. They are short enough for use in an exam, but detailed enough that you will never miss a point.
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The following is a more accessible plain text extract of the PDF sample above, taken from our Property Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Topic 2: Co-Ownership
Co-ownership:
Ownership of an interest in land by more than one person at the same time
Does not refer to any physical subdivisions of the property
Types of Co-ownership
Joint Tenants
Definition
A joint tenancy is where two or more persons simultaneously hold an interest in the same parcel of land, where the two distinguishing features are apparent: the right of survivorship and the four unities.
Joint tenants are said to hold per my et per pour tout (for nothing and for all) meaning that no JT has any individual share, but that each has a right, with the other JT, to the whole of the property
Despite the fact that a JT does not have an individual share, JT’s can freely dispose of their interests to another by severance.
Right of survivorship (‘just accrescendi’)
The interest of a joint tenant does not form part of his/her estate on death but accrues to the surviving joint tenant(s) - the jus accrescendi, or right of survivorship, rule
Consequence - a joint tenant cannot leave his/her interest to another person in his/her will
A joint tenant is free, however, to sever the joint tenancy, thereby creating a tenancy in common.
If they die at the same time: PLA 184 - Where two or more persons have died in circumstances rendering it uncertain which survived, such deaths shall be presumed to have occurred in order of seniority and the younger is deemed to have survived the elder.
Requires Four Unities (If one is missing – TIC, if Unity of Possession is missing = NEITHER)
Possession - each co-owner is entitled to possession of the whole property
Each co-owner is entitled to possession of the whole of the property, not exclusively for himself or herself but to be enjoyed together with the other joint tenants
Interest - each has an interest of the same nature, extent and duration
The interest of each JT must be the same in nature, extend and duration.
Title - each has acquired title under the same instrument or act
All the JT must derive their interests from the same document or the same act
Time - the interests vested at the same time
The interests of all joint tenants must vest at the same point in time. E.g. A to life and B and C when they turn 21. The interests of B and C are different as B and C have different birth dates. There are to exceptions to this: any conveyance executed to a trustee for beneficiaries or any disposition in a will may give rise to a JT in the grantees, even where unity of time does not exist M’Gregor v M’Gregor
Presumption of JT
There is a presumption of a joint tenancy if you give land to someone
Can be rebutted through words of severance:
Words of severance - indicate an intention that the transferee will have distinct shares, eg. Equally; between; among; in equal shares; to A and B respectively etc.
Only slight evidence is required to rebut the presumption
'to share and share alike as joint tenants' = this was held to be a joint tenancy despite the words of severance
Deed: look at first set of words
Will: look at second set
Tenants in Common
Definition:
Each TIC is entitled to the possession of the whole of the land (undivided) and is entitled to a distinct share thereof
The shares need not be equal
No tenant can claim a particular piece of the land
Each TIC’s share is fixed and cannot be enlarged by the death of another TIC
Different with JT
There is not right of survivorship
The share of a TIC passes to the beneficiary nominated in his/her will, or descends to the person entitled to his/her property under the rules governing interstate succession
A tenant can alienate his undivided share and it may become the subject matter of co-ownership
There must still be unity of possession
Creation of co-ownership – the position in law versus the position in equity
Common law:
At law, there is a common law presumption that co‐owners intended to hold the property as joint tenants where:
the four unities are present; and
no words of severance are used (see above)
TLA ss 30(2), 33(4)
s30(2) – where two or more persons are registered as joint proprietors they are deemed to be joint tenants
s33(4) – any 2 or more persons named in an instrument are entitled jointly unless a contrary intention exists
In equity: is a JT in law necessarily a JT in equity?
Equity normally follows the law and presumes that joint tenants at law are joint tenants in equity
Esp when the parties take conveyance of land as JTs and provide purchase money in equal shares
Or when parties were married and held land as JT’s Cummins
However, equity presumes a tenancy in common where two or more persons (these can be rebutted)
Make unequal contributions to the purchase price (subject to a contrary intention and the presumption of advancement) Baumgartner
If two or people acquire an interest in land (or any other object), having contributed unequally to the purchase price, they are presumed in equity to hold as tenants in common in proportion to their respective contributions Robinson v Preston.
The presumption will not arise where a conveyance to the parties expressly declares their beneficial interest in the property Goodman v Gallant.
Advance money as mortgagees (equally or not) Re jackson
You wouldn’t intend that someone would get your investment when you die (like Lake v Craddock)
Supported in section 112 and 113 of PLA
Acquire property for a business venture as partners Lake v Craddock
Hold land for separate business purposes/flexible approach Malayan Credit Ltd v Jack Chia
Is it possible to have a sole ownership at law but a co-ownership in equity?
Once they are presumed to hold equally, equity will presume JTs
Vedejs v Public Trustee
Mr Asaras and Ms V had developed a relationship and decided to live together as a defacto couple
Close and loving relationship
Pooled income for domestic expenses
Plans to get married
Mr V died without will
Mrs V argued there was a common...
Buy the full version of these notes or essay plans and more in our Property Law Notes.
Here you will find summarised property law notes for the entire Monash University topic (Both Property A and Property B).
The summary notes are an excellent exam help, with steps to work out whether a particular issue is found in a problem question, and relevant precedent and case citations for that HD answer. They are short enough for use in an exam, but detailed enough that you will never miss a point.
...
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