#7190 - Co Ownership - Property and Equity 2

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-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:

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)

Biviano v Natoli

(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 unequivocally”

• Removal by an AVO is not a legal wrong; it is made pursuant to an express statutory power.

• The AVO did not constitute ouster

• Denial of a request of sale does not constitute ouster (Jager v Jager)

• But the filing of a defence in which she denied his interest in property, and the persistent denial throughout the hearings up until the appeal constituted ouster

  • She is thus liable for occupation rent

There are generally 4 situations where one will be liable for occupation rent – it is not available by default

• Ouster (sue for mesne profits – Chieco v Evans)

  • Telling someone to ‘get out’ isn’t ouster (Cardinaels Hooper v Tierneyi)

  • Neither is inconvenience from doing renovations on a driveway (Ferguson v Miller)

• Improvement

  • This is a ‘defensive equity’ (Brickwood v Young) that operates as a charge on the land (it cannot be enforced against subsequent RPs or a BFPFVWN)

  • Furthermore you will be liable for occupation rent since this is an equitable claim

• Agreement

• A domestic relationship where one person moves out (Callow v Rupchev)

  • But if you leave for an extended period, likely you don’t have to pay occupation rent (but the one who left can argue it was impossible to live there in the circs)

• If a co-owner accepts rents and profits for the property he does so as agent for all co-owners and must account to all of them (Strelly)

• Improvements and ordinary repairs are alike compensable

• These principles apply also to resulting and constructive trusts

• One can make a claim for contribution at law or at equity

• At law one is not required to do equity and need not make an allowance for improvements – but a cross claim can be made

• The value of the property was split into two periods of usage – the first period ($100k) and the second period (50k)

• As to the first period the appellant was to account for his 90% usage to the respondent. Subtracting this from the respondents usage [in that we are making adjustments for amounts owed – this was 80% of $100k] - $80k

• Add 50k for the second period – 130k

• The respondents interest is 43% - which comes to $55.9k

• This is subtracted from the mortgage payments owed which is $97.5k – leaving $41.6k (and interest was added to this of $12,480 (5%)

• The 43% of the property from sale would be $187.50 – of which an adjustment of $41.6 + $12,480 = $54.08k

• This leaves $133,070 in favor of the respondent after sale

If you seek contribution you have to pay occupation rent

But someone can claim occupation rent anyway?

• As I understand it what he seems to be saying is that if you seek equity you must do equity – and in doing so there is no reason to distinguish between improvements/repairs to property and the reduction of a charge

• Also one does not need to account for occupation rent if they seek equity – but in response a claim can be made for occupation rent; the claim for occupation rent can only be as large as the claim...