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Law Notes Property and Equity 2 Notes

Co Ownership Notes

Updated Co Ownership Notes

Property and Equity 2 Notes

Property and Equity 2

Approximately 262 pages

UNSW Property and Equity 2 notes. Includes detailed case and materials notes and super summaries ideal to take into an open book exam. Structure of cases and materials notes:

Class 1: The Torrens System and Indefeasibility
Class 2: Indefeasibility of What?
Class 3 - The in personam exception
Class 4 - Other exceptions and overriding statutes
Class 5 - The register, equitable interests and caveats
Class 6 - Competing equitable interests
Class 7 - Co-ownership
Class 8 - Rights of enjoymen...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Property and Equity 2 Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

General Rules

Tenancy in Common Joint Tenancy

A “curious blend of co-ownership and several ownership” – each entitled to possession of the whole but only to a distinct share

At common law property vested in 2+ people generally carried a presumption of joint tenancy unless there were words of severance (‘in equal shares’. ‘share and share alike’ ‘amongst’ or ‘respectively’; generally the slightest intention to divide abrogates the presumption) – but s 26(1) of the Conveyancing Act replaces this with a presumption in favor of a tenancy in common which is rebuttable.

  • If one is the beneficiary and executor they are not exempt from this presumption (but they are if they are only the executor) – Mitchell v Arblaster

  • Another basis upon which someone may gain beneficial ownership similar to survivorship from a will is through a class gift – Mitchell v Arblaster

  • s 26(1) provides that an executor, administrator, trustee or mortgagee is exempt from s 26(1); it also exempts the section where an instrument expressly provides that persons are to take as joint tenants

Survivorship (The jus accrescendi) when one JT dies the remainder vests in the survivor because death frees the property from the control of one owner (rather than using succession)

The four unities

  1. Possession – each is entitled to the whole property to be enjoyed with the others

  2. Interest – must be of the same nature, extent and duration

  3. Title – all must derive their interests from the same document or same act

  4. Time – all interests must vest at the same point in time (unless it is a conveyance executed to a trustee for beneficiaries or a disposition in a will)

There used to be a presumption of JT unless words of severance (Morley v Bird) – they were popular due to easy transition of ownership; e.g. in marriage.

Good line: X and Y were joint tenants and thus hold per my et per tout (for nothing and for all)

Note: Survivorship precedes the operation of a will

s 25 of the Conveyancing Act allows corporations to hold as trustee

IF the order of death is uncertain, seniority of age governs the rules of JTs
Co-ownership in General

  • Co-owner can’t sue another for conversion if there was wrongful disposal of a chattel, except where the sale results in destruction (Barnardiston v Chapman)

There are three situations where equity held that joint tenants at law would hold as tenants in common:

Key Cases/Concept Issue Principle Ratio

Business Partners

Lake v Craddock

 How do they hold their interests/

  • Although parties were joint tenants at law, they were tenants in common at equity since it would be unfair to permit survivorship to operate in an undertaking to produce profit since the partner who dies first would lose all their investment
Money advanced on Mortgage

  • When two or more persons advance money on a mortgage there is a presumption at equity that they are tenants in common whether they take in equal or unequal shares (same rationale as above, mortgagees generally lend money as an investment and would scarcely forego their money if they should die before it was repaid)

    • At common law there was a presumption that where a mortgagor redeemed their property receipt of money from all co-owners had to take place and if one died the mortgagor had to look for their legal/personal representatives (joint account clause – can be repaid to survivors who hold on trust for dead mortgagees)

    • By force of statute one dealing with in good faith with a mortgagee is entitled to assume if there is more than one they are entitled to the money on a joint account and that the mortgagee can give a valid receipt for the money – s 96A, s99 Conveyancing Act
Unequal contribution to purchase price

  • Unequal contributors are presumed in equity to hold as tenants in common in proportion to their respective contributions (Robinson v Prestone) – this means that all are entitled to concurrent possession and cannot be evicted (Bull v Bill) and it extends to joint liability under a mortgage (Calverley v Green)

  • Does not arise if parties expressly declare their beneficial interest (Goodman v Goodman)

  • If parties contribute equally to the purchase price a joint tenancy is presumed in equity

Other factors

Malayan Credit v Jack-Chia

  • Held to be a joint tenancy, but upon severance became a tenancy in common in unequal shares. But at equity there could be one of three possibilities (JT, TICU, TICE) – here it was TICE:

  • Leases taken to serve separate commercial interests

  • Before lease quantum of space already decided

  • Before lease meticulous area/rent obligations were decided

  • Before lease plaintiff invoiced its due share of deposit to landlord made in unequal shares

  • From grant of lease, rent and service charges were paid in equal shares

But now we have the presumption of TIC (in equal shares) at common law by virtue of s 26(1) of the Conveyancing Act

Applied in Delehunt v Carmody – instrument registered in one name but man and woman contributed to purchase price hence held as tenants in common in equity; on man’s death she (de facto) took half and the wife took the other

Co-ownership in Torrens Land – authorized under s 100(1) of the RPA – generally the R-G requires co-owners to specify whether they take as joint tenants or tenants in common

Hircock v Windsor Homes – s 26(1) operates to imply a tenancy in common under s 100(1), anyone registered as “joint proprietors” can carry title as a joint tenants but this can be rebutted like in Re Foley

S 27 Conveyancing Act – parties hold at tenants in common in both law and equity unless they otherwise agree (this is an old system provision)

Rights of Enjoyment inter se

Concept Key Cases Issue Principle Ratio Comments
Occupation Rent

Biviano v Natoli

(AVO = ouster?)

 Is an AVO Ouster

  • The true nature of ouster is that of “an express denial of the title and right to possession of fellow tenants, brought home to the latter open and...

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