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The law of co-ownership applies where more than one person owns the land at the

same time. English law recognised two forms of co-ownership, joint tenancy(JT) and tenancy
in common(TIC). Where there is a JT, all the co-owners collectively owned the whole
property. In the eyes of the law, joint tenants do not holding specific shares of the land or,
indeed, any individual existence.1 In order for JT to exist, four unities must present. Firstly,
unity of possession, which means the co-owners must be entitled to possession of the
whole of the land, and not entitled to exclude each other from the possession of any part
thereof. Next, unity of interest, requires joint tenants to have the identical interest in the
land and unity of title requires joint tenants must derive their identical interest in the land
by an identical means, through the same act or document. Last, unity of time which held
that the interest of joint tenant must acquire by them at the same time. JT also owned a
peculiar feature that, when one of the joint tenant dies, his or her interest will automatically
passes to the remaining surviving joint tenant.2 This is what called right of survivorship
which only exist in joint tenancy.3

Contrastingly, a person who enjoys an interest in property as TIC is regarded as enjoying

a notional share of ownership which is owned by him and by him alone rather than owning
the land entirely. Shortly, tenants in common owning the separate shares in the land, but it
will only exist in relation to the metaphysically abstract ownership of the land.4 This if follow
the facts from the unity of possession which entitled the tenants in common to possess
every part of the land. This is the only unity required in TIC. 5

Five friends purchased a house for them to live in. Title to house was conveyed into the
names of four out of five of them. The conveyance also states that all five of them own the
house as beneficial joint tenants. Yet, why the title not conveyed to all five of them?
Under s34(2) of Law of Property Act 19256, where the legal title is conveyed to more than

Prior to 1925, it was possible for the legal ownership of the land to become fragmented between numerous
people, with obvious attendant conveyancing difficulties. To avoid this, the law altered, imposing four as the
maximum number of the legal owners of land.
Nicola Jackson, Gateway To Land Law (Sweet & Maxwell 2012).
Thus, there is something of winner takes all! The longest living co-owner will gets the whole estate
The legislation 1925 abolished the legal tenancy in common. It is provided by section 1(6) of Law of Property
Act 1925 that, A legal estate is not capable of subsisting or of being created in an undivided share
Law of Property Act 1925, section 34(2): Where, after the commencement of this Act, land is expressed to be
conveyed to any persons in undivided shares and those persons are of full age, the conveyance shall
(notwithstanding anything to the contrary in this Act) operate as if the land had been expressed to be
four person as joint tenants, the four first named (who are able and willing to act) shall
alone be trustee7. So, Kyoko, Raymond, Devina and Clara can be classed as trustees, who
holding the house on trust for Melisa and themselves. Besides, irrespective of whether they
have contributed equally to the purchased price of the house, as they expressly taken the
house as joint tenants, all of them as much entitled to the whole of the house as the other.

The first issue is, Devina spoke to Theresa who was keen in buying her interest of the
house. However, later she changed her mind. Now, does Devina still hold the interest of the
house? The law have pointed that a joint tenant has no share capable of transfer, simply
being entitled to the whole together with the others. The only way for Devina to sale the
interest is by separate her notional share from other joint tenants by means of severance.
Hence, she ceased to become a tenant in common. When a joint tenant is severed, the
party severing will be entitled to a share of a beneficial ownership directly proportionately
to the number of joint tenant even the initial contributions of the joint tenants to the
purchase price of the property were unequal. This can be illustrated in Bedson v Bedson8 by
Russell L.J. However, the parties may also agree a different arrangement between
themselves, so that an unequal share is severed.

Today, severance is governed by S36(2) LPA9, which required the giving of written
notice to the all joint tenants, it cannot be secret. This is designed to be a simple method
for one joint tenant. The method of severance is entirely unilateral, which means that the
joint tenant does not require the consent of the other joint tenant. Previously that was
possible only by the artificial route of transferring ones share. A recent decision in Kinch v

conveyed to the grantees, or, if there are more than four grantees, to the four first named in the conveyance,
as joint tenants.
It is noted that although there can only be a maximum of four joint tenants of the legal title there is no limit
to the number of persons who can share entitlement to the equitable interest.
Bedson v Bedson [1965] 2 Q.B.666, Russell L.J held that: On severance beneficial joint tenancy in common in
undivided shares and the right of survivorship no longer obtains. If there be two beneficial joint tenants,
severance produces a beneficial tenancy in common in two equal shares. If there be three beneficial joint
tenants and only one severs, he is entitled to one-third undivided share and there is no longer survivorship
between him and the other two, though the other two may remain inter se beneficial joint tenants of the
other two-thirds.
Law of Property Act 1925, section 36(2): The means of severance are then,
Provided that, where a legal estate(not being settled land) is vested in joint tenants beneficially, and any
tenants desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing
of such desire or do such other acts or things as would, in the case of personal estate, have been effectual to
sever the tenancy in equity, and there upon the land shall be held in trust on terms which would have been
requisite for giving effect to the beneficial interests if there had been an actual severance.
Bullard10 , has confirmed the statutory rule that notices are effective on delivery, even if
never received by the intended recipient.11 It can be seen that Devina have not given any
notice to other joint tenants, her severance of the interest of the house is invalid. Thus,
Devina still own the interest of townhouse.

The next issue is, by providing a series of contribution, does Tanya hold any interest of
the house? Law of trust can be created either expressly12 or impliedly. Under S53(2) of
LPA13,two types of implied trust, resulting and constructive trust can arise without any
writing. Resulting trust arise when any expressed intention of the parties are absent. In Dyer
v Dyer14 , Eyre C.B. held that the presumption that a contribution to the purchase price of
the land will generate an interest in the equitable ownership in favour of the contributor by
way of a resulting trust. While in Tinsley v Milligan15, it was held that only a direct
contribution to the purchase price of the property will give rise to a presumption of resulting

Besides, in certain relationships, it is presumed that a gift was intended unless there is
evidence that the transferor intended to retain an interest. This is illustrated in Yip Wai
Hong v Yip Kai Tong17 where the sons sought to rely on the presumption of advancement
and Deputy Judge Burrell decided that they were entitled to do so. It did not matter that the
defence made no specific reference to the presumption. It was enough to show that there
had been a transfer from father to son for the presumption to arise. 18Thus, although the
money given by Tanya to Devina is the contribution of the purchase price of the townhouse,

Kinch v Bullard d [1999] 1 WLR 423, applying LPA, s 196(3). On the facts, the given of the notice had got hold
of it and destroyed it. The court held that there had been sufficient severance under s36(2) LPA even though
the husband had not actually read the notice.
<http://lawnotesh1.blogspot.my/2012/06/co-ownership.html> accessed 22 December 2015.
To create a trust concerning land, the normal rule as to formality is contained in section 53(1)(b) of the Law
of Property Act 1925, which provides that, A declaration of trust respecting any land or any interest therein
must be manifested and proved by some writing signed by some writing signed by some person who is able to
declare such trustor by his will
Law of Property Act 1925, section 53(2)
Dyer v Dyer (1788) 2 Cox Eq Cas 92
Tinsley v Milligan [1993] 3 All ER 65
<http://e-lawresources.co.uk/Land/Resulting-trusts.php> accessed 20 December 2015.
Yip Wai Hong v Yip Kai Tong ([2015] HKEC 501, CFI) The father also argued that the presumption is now a
weak concept. This was rejected: Tribe v Tribe from the UK and Calverly v Green from Australia show that the
presumption is still alive and well
<https://hklandlaw.wordpress.com/category/presumption-of-advancement/> accessed 20 December 2015.
as it is a gift for the daughter and it is not a direct contribution from Tanya to price of
house, Tanya will fail to acquire a beneficial interest of the townhouse.

Yet, Tanya can try to apply constructive trust which comes in a range of forms. The most
important one is common intention constructive trust. In Gissing v Gissing19, the court
stressed that there two stages to the process of establishing a common intention. Firstly,
Tanya are require to show that Devina had in some way induced the her to believe that she
would be entitled to a share of the ownership. The inducement can be separated into two
forms, express, or the agreement could be inferred from the contribution of acquisition.
This is explained by Lord Diplock in Gissing20.

Since Tanya and Devina did not have an express agreement which stated what their
relative rights are, she would like to know whether there is an implied common intention. In
Lloyds Bank v Rosset21 Lord Bridge remarked that only a substantial contribution to the
purchase price would suffice, but this was greeted with criticism. So, in Oxley v Hiscock22, it
was pointed out that a common intention could be inferred where a person made other
than a financial contribution to the purchase of the property. 23In Tanyas case, although she
had pay 5,000 pounds to have an extra bedroom for her use, but this is not included in the
relevant contribution of the purchase price of the property. Her contribution to the caf also

Gissing v Gissing [1971] A.C.881.
I take it to be clear that if the court is satisfied that it was the common intention of both spouses that the
contributing wife should have a share in the beneficial interest and that her contributions were made upon
this understanding, the court in the exercise of its equitable jurisdiction would not permit the husband in
whom the legal estate was vested and who had accepted the benefit of the contributions to take the whole
beneficial interest merely because at the time the wife made her contributions there had been no express
agreement as to how her share in it was to be qualified.
Lloyds Bank v Rosset [1991] 1 AC 107 Lord Bridge explained : In sharp contrast with this situation is the very
different one where there is no evidence to support a finding of an agreement or arrangement to share,
however reasonable it might have been for the parties to reach such an arrangement if they had applied their
minds to the question, and where the court must rely entirely on the conduct of the parties both as the basis
from which to infer a common intention to share the property beneficially and as the conduct relied on to give
rise to a constructive trust. In this situation direct contributions to the purchase price by the partner who is not
the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference
necessary to the creation of a constructive trust. But, as I read the authorities, it is at least extremely doubtful
whether anything less will do.
Oxley v Hiscock [2004] EWCA Civ 546
A common intention thus be inferred where a person had made a financial contribution to the purchase of
the property, had enable the property to be purchased at a discounted price, had contributed to the payment
of mortgage, or had increase the value of the property by undertaking or contributing to the cost of
improvements. In absent of the relevant contribution to the purchase price of the property, the common
intention will be unable to establish.
irrelevant to the purchased price of the townhouse. So, it can be held that there is no
common intention between Tanya and Devina. 24

There will be a case where the party claiming the interest had acted to his or her
detriment in some way on the basis of the common intention. Detriment is still a
requirement where common intention is implied, but the facts relied upon to infer the
common intention will themselves demonstrate the detriment. This is also pointed by Lord
Bridge in Lloyds Bank v Rosset25. It was held that Tanya did not suffered any detriment from
Devina promise or agreement, as Devina did not tell Tanya that she will shared the interest
of the townhouse with her if Tanya help them in the caf. Hence, Tanya also failed to
enforced constructive trust.

Last, Tanya can try to apply proprietary estoppel (PE) which is a means of creating a
proprietary interest in land in the absence of following the correct formalities. In Taylor
Fashion Ltd v Liverpool Victoria Friendly Society26, there are three interrelated elements to
be fulfilled to establish an estoppel equity, there are assurance, reliance and detriment.
These elements have been reiterated by Robert Walker L.J. in Gillet v Holt27. So at first,
Tanya must show that there was an assurance by the landowner which gave rise to an
expectation that she was entitled to some interest in the house. This is demonstrated in
Scottish and Newcastle Plc v Lancashire Mortgage Corp Ltd28, where the first chargee stood
by knowing that a chargee second in time expected to have priority. The first charge was
estopped from asserting priority when the second charge relied on the expectation to his
detriment. This also known as passive assurance. According to this case, Tanya satisfied the
first element, assurance, which show that Devina know that Tanya have mistakenly expect
that she will entitled to an interest of the townhouse but did nothing to clarify it.

[http://e-lawresources.co.uk/Land/Constructive-trusts.php] accessed 20/12/2015
Lloyds Bank v Rosset [1990] UKHL 4 at p.8.
Taylor Fashions Ltd v Liverpool Victoria Friendly Society [1981] 2 WLR 576 Chancery Division
Gillet v Holt [2000] 2 All ER 289 it is important to note at the outset that the doctrine of proprietary
estoppel cannot be treated as subdivided into three or four watertight compartments. In the course of oral
argument in this court it repeatedly became apparent that because the quality of the relevant assurances may
influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a
distinct need for a mutual understanding may depend on how the other elements are formulated and
understood. Moreover, the fundamental principle that equity is concerned to prevent unconscionable conduct
permeates all the elements of the doctrine. In the end the court must look at the matter in he round. at 301.
Scottish and Newcastle Plc v Lancashire Mortgage Corp Ltd [2007] EWCA Civ 684
Tanya have to prove that she relied on that assurance. Reliance is the element which
connects any detriment with the assurance so that claimant can be said to have so acted
because of the inducement. This is best illustrated in Attorney General of Hong Kong v
Humphreys Estate Ltd29, Privy Council stated that claimants of proprietary estoppel must
show that they had relied on the belief of expectation encouraged by the land owner. The
assurance does not have to be the only influencing factor. In most cases, the element of
reliance will be obvious, and in Greasley v Cooke30, Lord Denning considered that it should
be presumed once a presentation has been established.

As a mere promise to make gift does not entitled the prospective done to compel
the donor to make it. A person is perfectly entitled to go back on his word. Nevertheless, if
the person to whom the assurance was given has acted in some way in reliance upon it, the
representor will be estopped from denying the expectation he generated. It is the
detrimental reliance which renders it to be unconscionable for the landowner to assert his
strict rights against the representee. One of the detriment is claimant suffers non-financial
personal disadvantage. This is well established in Jones v Jones31, where a son who moved
to a house purchased by his father so that he could live nearby was held to have acted to his
detriment. Besides, in Campbell v Griffin32, a man who initially lived with a couple as a
lodger came to be regarded as a son and took care of them also regarded as suffered a non-
financial disadvantages.

It can be held that, if Tanya can show that she rely on the implied assurance of
Devina which expect that she will have shared the townhouse interest with Devina and so
she helped with the baking in the caf which can be considered as suffered a non-financial
disadvantage which regarded as having acted to her detriment, then, by satisfied the three
elements, Tanya will be able to establish an estoppel equity successfully and hence, Tanya
will have the interest of the townhouse.

Furthermore, Raymond divorced and was given custody of his child. He brought
Tom, 3 years old to live with them. In such situation, according to Salmon L.J in Rawlings v

Attorney General of Hong Kong v Humphreys Estate Ltd [1987] A.C.114.
Greasley v Cooke [1980] 1 W.L.R.1306
Jones v Jones [1977] 1 WLR 438
Campbell v Griffin [2001] EWCA Civ 990
Rawlings33, the position of Raymond and other joint tenants might be different if the co-
owners had children still in need of a home.34 This was adopted by CA in Williams v
Williams35, where Lord Denning pointed that the primary purpose of the trust was to
provide a home in which the family is to be brought up and refused to order sale unless it
were shown that alternative accommodation could be provided at a cheap rate, and some
capital released.36 This is affirmed in Dennis v McDonald37 and Re Evers Trust38. The courts
are required to give consideration to the interest of children requiring a home under s15 of
TOLATA39. So, all the joint tenants of the townhouse will not be able to sale the house
randomly as it is a home for Tom who is still 3 years old. 40

Next, as both of Melisa and Kyoko are joint tenants, the severance will through the
mutual agreement which means severance will only occur if all joint tenants are agreed that
it should. The fundamental element for severance by mutual agreement is that joint tenants
actually reach an appropriate agreement in relation to beneficial ownership of the property.
In Burgess v Rawnsley41 inconclusive negotiations and discussion may be sufficient to effect
severance under mutual conduct. In Barracks v Barracks42, a negotiation for one co-owner
to buy out the other would have amounted to a mutual agreement to sever, even where
there appeared to be dispute as to timing and value of property. Based on this case,
severance of Melisas interest by mutual agreement will occur, as there is an inconclusive
negotiations between Melisa and Kyoko. However, in Burgess v Rawnsley, CA rejected the
argument that a mere unilateral declaration of intention is insufficient, even if
communicated. This was affirmed in Gore and Snell v Carpenter43, that a common intention
to sever could not inferred from abortive negotiations because at that stage the wife had

Rawlings v Rawlings [1964] P.398.
If there were young children the position would be different. One of the purposes of the trust would no
doubt have been to provide a home for them, and whilst that purpose still existed a sale would generally not
be ordered. But when those children are grown up and the marriage is dead, the purposes of the trust have
William v William [1976] Ch278
Roger J Smith, Introduction To Land Law (3rd edn, Pearson Longman 2013).
Dennis v McDonald [1982] 1 All ER 590
Re Ever Trust [1980] 1WLR 1327. CA
Trust of Land and Appointment of Trustee Act 1996, section15
<http://www.ukessays.com/essays/property/land-property-rights.php> accessed 22 December 2015.
Burgess v Rawnsley [1975] Ch.429. a course of dealing need not amount to an agreement, expressed or
implied, for severance. It is sufficient if there is a course of dealing in which one party makes clear to the other
that he desires that their shares should no longer be held jointly but held in common.
Barracks v Barracks and Another [2005] EWHC 3077 (Ch)
Gore and Snell v Carpenter [1990] 60 P.& C.R.456
not been prepared to commit herself to TIC. According to this, there is no severance by
mutual agreement of Melisas interest.

Now, can Adam possess the will of Kyoko? Based on the survivorship, interest of
Kyoko in the house automatically passes to the remaining joint tenants as Kyoko, as a joint
tenant is incapable of disposing of her interest by means of will. So, Adam will be unable to
inherit Kyokos interest as a joint tenant. However, if there is severance of Melisas interest
to Kyoko as TIC, Adam will be able to inherit Kyokos will as a tenant in common as there is
no survivorship in TIC.

Mortgage is a charge over land or other property to take security for the loan to
protect the lender. Where the borrower default on loan repayment, the lender may wish to
sell the charged land, the most effective way of realizing the security.44 There are two test
for when the land can be sold, when the power of sale arises and when the power is
exercisable. Shortly, any sale when the power is not exercisable constitute a breach of duty
by the creditor. Under LPA45, the power of sale arise when the mortgage debt is due46 and
the power of sale exercisable when there have been a real default47. According to provision
of LPA, the power of sale of Barclays Bank arise when the mortgage debt of Clara is due and
the power exercisable when Clara defaulted her loan repayment.

However, the bank only has an interest of the co-owned property, the court will
balance the interest of the bank against those of the co-owners and any minors when

Before 1 Jan 1926, if an owner of a legal or equitable estate in land wished to raise money on the security of
that land, the borrower's entire interest in the property was usually conveyed in full to the lender. Mortgagee
promised to reconvey the land on repayment of the principal (capital sum), interest and costs, but mortgage
contract allowed mortgagee to keep the borrower's land if he failed to repay the loan on the date stipulated in
the mortgage contract. This date, known as the 'legal date of redemption', was crucial, missing payment were
theoretically severe. However, the position was mitigated by the intervention of equity. Whereby borrower
entitled to a reconveyance of his property should he pay the full sums due under the mortgage, even though
the 'legal date' for redemption had passed. This was simply that a mortgage really was security for a loan and
did not represent an opportunity for the mortgagee to obtain the property of a solvent mortgager is the debt
could be repaid.
LPA 1925 made significant changes to the ways mortgages could be created. Overall intent was to ensure
that a mortgager retained the fullest interest possible in their own property, even when seeking a mortgage of
it, provided that the mortgagee had suitable remedies in the event of a failure to repay the loan.
Land of Property Act 1925, section 101,
Land of Property Act 1925, section 103, there are three possibilities:
1. Three months notice requiring capital repayment has been given
2. Interest is in arrear for two months; or
3. Some other breach has covered
making an order under s14 TOLATA48. In Mortgage Corp v Shaire49, the company sought the
sale of the house but this was refused by the court.50 The greater flexibility of the court
adopted in Bank of Ireland Home Mortgages Ltd v Bell51. However, CA ordered the sale of a
property, and stressed that it would be unfair to condemn the mortgage to go on waiting for
its money, with no prospect of recovering its debt from the owner, and with the debt
increasing all the time and already exceeding what could be realised on the sale. Moreover,
in Edwards v Llyods TSB Bank Plc52, immediate sale was not ordered as the consequences
would be unacceptably severe on the wife and children. Sale was postponed until the
youngest child reach majority, with the possibility of further postpone should the children
be then in full-time education. 53

According to this, it is clearly that the order of sale in under the court discretion. If
the welfare of minor under s15 TOLATA is considered,54 Barclays Bank may be unable to get
the order of sale as Tom, Raymonds son who are only 3 years old still in need of a home.
However, the court may also order of sale as it is really unfair for the bank to waiting for
Clara who are defaulted the repayment to recover the money and with the debt increase
until it is exceed what could be realised on the sale. If an order of sale is apply, Barclays
bank can only get the proportionate share of Clara and other will returned to other joint
tenants. Yet, if the sale price does not cover the amount due, borrower can be sued for the

Notwithstanding, if Clara declare bankruptcy, will the result be difference? Where a

beneficiaries trustee in bankruptcy applies to the court for an order for sale less than a year
after the bankruptcy, s.335A of Insolvency Act 198555 sets out the factors which the court

Trust of Land and Appointment of Trustee Act 1996, section14. Prior to TOLATA 1996, the court held that in
exercising its discretion under s30 of the Law of Property Act 1925, the interest of a secured creditor would
always prevail over those of the beneficiaries and their children unless there were exceptional circumstances.
Mortgage Corp v Shaire [2001] 4 All E.R.364
Neuberger J. considered the factors identified in TOLATA s15(1) and, on balance, concluded that an order for
sale should be refused. He explained his reasoning as follow: To my mind, for Mrs Shaire to have leave her
home of nearly a quarter of a century would be a real and significant hardship, but not an enormous one. She
would have a substantial sum that could be put towards a smaller houseOn the other hand I have no
evidence have as to what properties might be available for the sort of money she would be able to pay.
Bank of Ireland Home Mortgages Ltd v Bell [2001] 2 All ER (Comm) 920
Edwards v Llyods TSB Bank Plc [2004] EWHC 1745 (Ch)
<http://lawnotesh1.blogspot.my/2012/06/mortgages.html> accessed 22 December 2015.
<http://www.legislation.gov.uk/ukpga/1996/47/part/I> accessed 22 December 2015.
Insolvency Act 1985, s335(A)
must concerned. In light of Bells case, the interest of the creditor should still always be
given very powerful consideration, and they are unlikely to be aside. Where beneficiaries
trustee in bankruptcy applies for an order for sale more than one year after bankruptcy,
s335A(3), provide a much more strict provision. In Re Citro56 Nourse L.J explained that the
court should not treat disruption to family as an exceptional circumstances. The only
circumstances which is consider as exceptional is illness or disability of a beneficiary or of
children living in the property which make it too disruptive for them to move from the
property. It can be said that if Clara declare of bankruptcy, the Barclays bank will be more
difficult to apply order for sale and if the bank sought the order of sale after one year Clara
declared bankruptcy, they will fail to get the order as there is an exceptional circumstances
as Tom, the son of Raymond still live in the house. 57

In conclusion, since severance require a written notice to other joint tenants under
S36(2) LPA, Devina have not severance her interest by not given written notice. Next, if
Tanya apply constructive and resulting trust, she will not entitled to the interest of the
townhouse as she did not contribute to the purchase price of the house and fail to show the
common intention between her and Devina. However, by using PE, Tanya will be able get an
interest if she success to show the three elements, assurance, reliance and detriment.
Besides, of course, Raymond have an interest of the townhouse since he did not sever it
but, under s15 TOLATA, he will not able to sever his interest as his son need it as a home.
Adam also may have an interest if the severance of Melisas interest to Kyoko have
occurred. Yet Adam will not entitled to possess Kyokos will as a JT and the interest of Kyoko
as JT will be divided to other joint tenants. Last, Clara will not have an interest as she
defaulted the loan payment and the interest will be now owned by the bank. Under s15 of
TOLATA, the court will not order the interest for sale as Tom need the townhouse as a
home. The result will remain or even more difficult if Clara declare bankruptcy.

Re Citro [1991] Ch 142
hFfH4uU2X45_WeQ> accessed 22 December 2015.