12.11.

15
Real Property
Joint Tenancy: Tenancy in Common
Tenancy in common defers fundamentally from joint tenancy in that:
a) The only unity is the unity of possession
b) There is no right of survivorship
Tenants in common are said to hold-in undivided shares. This means that
each tenant has a distinct fixed share in the property, e.g. , 1/3, albeit
that the land at present is undivided and treated as a single unit which
can be realized if and when the property is sold. Since there is no ius
accrescendi, a tenant in common may dispose of his share by will or it
may pass on intestacy. A tenancy in common arises:
a) Where land is granted to 2 or more persons with words of severance
such as in equal shares or equally or to be divided amongst shares
respectively. (Christian v. Mitchell-Lee (1969) 13 WIR 302)
b) Where equity treats a joint tenancy at law as a tenancy in common
c) Where a joint tenant severs his joint tenancy by alienation, acquisition
of a greater interest, agreement or course of dealing.
Equity has always leaned in favour of tenancy in common, as equity
preferred the certainty and equality of a tenancy in common rather than
the element of chance introduced in the ius accrescendi of joint tenancy.
There are 4 instances in which equity presumes that a tenancy in
common has been created:
1. Purchase money provided in unequal shares: where two or more
persons purchase land together providing the money in unequal
shares, a tenancy in common is presumed and the purchasers take
shares proportionate to the amount advanced by each. [Lake v. Gibson
(1729)]
2. Loan on mortgage: where two or more persons advance money
whether in equal or unequal shares and take or mortgage of the land
from the borrower to himself jointly, they are joint tenants at law but
are treated in equity as tenants in common and the survivor is a
trustee of the deceased or mortgagees share for his personal
representatives for though they take a joint security, each means to
lend his own and take back his own.
Test:

TORT: Definition for tort

Defamation: defences
Nuisance: public and private, remedies and defences
CONTRACT: definition
Elements of contract
Privity of contract
Express and implied terms
REAL PROPERTY:
Fixtures and chattel
Realty and personalty
Movable & immovable
Corporeal and incorporeal property
Case scenario.

13.11.15
Contract Law:
*notes missing*
Judges have shown a willingness to redress the imbalance to which
exclusion clause can give rise. They have done so initially by insisting on
strict rules of incorporation of such clauses. They must be terms of the
contract.
Signed Agreements
As with terms in general, the initial proposition is that where a party
has signed a written agreement then he is prima facie bound by that
agreement. This will apply generally even though the party caught by the
exclusion clause has not read the contract.
Express knowledge of the Clause
The first principle adopted by the courts is that an exemption or
exclusion clause will only be incorporated into a contract where the party
subject to the clause has actual knowledge of the clause at the time the
contract was made. If a party has no knowledge of the clause at the time of
entering the contract then the other party cannot rely on the clause to avoid
liability for contractual or other breaches.

Olley v. Marlborough Court Hotel [1949] 1KB 532

On the other hand, where the parties have dealt on the same terms in the
past, it may be possible to imply knowledge of the clause from those past
dealings.
Spurling (J) Ltd. v Bradshaw [1956] 1 WLR 561
However, the court will not allow a party to imply knowledge of an exemption
clause in order to incorporate it into the contract unless the previous
dealings represent a consistent course of action.
McCutcheon v. David MacBrayne Ltd [1964] 1 WLR 125
Sufficiency of Notice of the Exemption Clause
In general, the courts will not accept that an exemption clause has
been incorporated into a contract unless the party who is subject to the
clause has been made sufficiently aware of the existence of the clause in the
contract before or at the time it is formed. The obligation then is firmly on
the party inserting the clause into the contract to bring it to the attention of
the other party before it can be relied on.
Ticket Cases: Parker v. South Eastern Railway Co. (1877) 2 CPD 416
Chapelton v. Barry Urban District Council [1940]

Dillon v Baltic Shipping Co. Ltd [1991] 2LR 155

Thornton v. Shoelane Parking ltd. [1972]
Interfoto Picture Library Ltd. v. Stilleto Visual Programmes [1988]
2 WLR 615
The Contract Preferentem Rule
This is a device that can be applied whenever a contract contains
ambiguities. The basic principle is that if a party wishes to secure an
exclusion from liability for contractual breaches my means of incorporation of
an exemption clause into a contract, then the clause must be specific as to
the circumstances in which the exemption is claimed, If the clause is in fact

in any way ambiguous then the ambiguity is said to work in favour of the
other party so that the clause will fail.
Andrews Bros (Bournemouth) v Singers & Co. [1934] 1 QB 17
The effect of the contract preferentem rule as applied to exemption clauses
then is that where there is ambiguity in the contract, the ambiguity will work
against the party seeking to rely on the clause rather than the party subject
to it.
Hollier v. Rambler Motors (AMC Ltd) [1976] QB 71