Nadia

Land Law Cases

CO-OWNERSHIP & TRUSTS

General – Creation, etc.

 Severance must occur during joint tenant’s lifetime
Gould v Kemp
 Right of survivorship
order of deaths is significant: if two people die kind of at
Hickman v Peacey
the same time, the order is that of seniority
Express written declaration is conclusive in determining
nature of equitable interest
Goodman v Gallant
 subject to challenge on grounds of fraud, mistake or
undue influence
nephew and aunt bought house for uncle, but kept for
themselves (esp aunt)
Pankhania v Chandegra (1) express declr ation of trust is conclusive of nature of
equitable interest = sale ordered
(2) unless valid reasons to doubt it
express trust in writing can be challenged if ther is fraud,
Clarke v Meadus
unconscionable behaviour, estoppel
granted new tenancy on condition that she terminates
Hammersmith and Fullham LBC v existing joint one; wasn’t
Monk [periodic tenancy] notice to quit by one tenant terminates
periodic tenancy = one party doesn’t want a new tenancy
Stack v Dowden [express trust declaration of joint tenancy must not be equivocal
point] (“survivor can give receipt for capital money)
human rights lease case
Sims v Dacorum
secure weekly tenancy is terminated by notice to quit
[words of severance in transfer] “beneficial joint tenants in
Martin v Martin common in equal shares” meant no joint tenancy because
they reprsented “words of severance”
[presumption of tenancy in common] where purchase price is
Malayan Credit v Jack Chia-MPH provided in unequal shares or commercial partnership
property
husband paid mortgage + loan, wife only furniture
(1) [express trust - promise] absence of writing in
Gissing v Gissing express trust makes it valid but unenforcible
(2) [constructive trust] no monetary contribution towards
price, furniture not enough to infer common intention
AG Securities v Vaughan all four unities must be present for joint tenancy
two separate documents read together as one deed, to
Antoniades v Villiers
give unity of title
case for three common law modes of severance:
(1) Acting on one’s share
Williams v Hensman
(2) Mutual agreement
(3) Mutual conduct
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Land Law Cases
s. 36 – LPA 1925
s. 36(2) – LPA 1925
s. 1(6) – LPA 1925
Stack v Dowden
Dyer v Dyer (classical position)
Laskar v Laskar
Midland Bank v Cooke
Kerly v Perks
Sekhon v Alissa
Pettit v Pettitt
Lloyds Bank v Rosset (acquisition)
Stack v Dowden
(quantification)
(joint legal owners)
Jones v Kernott
(quantification)
(joint legal owners)
joint tenancy must be held under a trust
severance by written notice
legal title can only be joint tenancy (i.e. one legal title)
(1) Equity follows the law: in absence of counterveiling
rule  equitable interest will be joint (like legal
one); can be displaced by principles of constructive
and resulting trusts
(2) [resulting trust] doubted its relevance in domestic
situations, but Lord Neuberger didn’t abandon it
completely
[also Jones v Kernot, Laskar v Laskar]
Implied Trusts
[resulting trust] if you paid part of price of acquisition, you
enjoy an interest in land commensurate with share
investment property by mother and daughter
[resulting trust] now money contribution doesn’t need to be
at conveyance stage, but can be mortgage payment
husband, wife purchase partly with cheque from parents
(1) money contribution used to show existence of
beneficial interest, constructive trust used to
quantify; “whole dealing”;
(2) if no other intention = according to shares
[resulting trust] if there is some other reason why X paid
money (e.g. gift) or X’s money were paying for things other
than the property, no resulting trust
[resulting trust] presumption of resulting trust may be
rebutted by proof of contrary intention
husband carries out minor improvements
(1) no constructive trust – there needs to be substantial
contribution to purchase price or mortgage
payments
[constructive trust – requirements]
(1) common intention:
(a) express common intention
(b) implied/inferred common intention
(2) [common intention] express discussions relating to
ownership + inference from financial contributions
to purchase price
‘equity follows’ the law displaced by fact that wife paid more
and the two kept separate accounts
(1) [resulting trust] when both responsible for mortgage
jointly, no presumption of resulting trust arising from
unequal shares
(2) [common intention] can infer from entire course of
conduct; some suggestion that it can be imputed
husband who lived away for 13 years, wife paid all ortgage
– 90%
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Land Law Cases
(1) [acquisition application] quantification case, but
Stack says it can apply to acquisition too
(2) [intention to vary] cannot impute intention to vary
between co-owners
(3) Once intention to vary established, intention to
quantify it can be express, implied or imputed
gf wields a 14b sledgehamer
(1) common intention can arise from express oral
Eves v Eves assurances made by legal owner
(common intention) (2) detriment usually property related/ financial
(detriment) payments to purchase price/ undertaking
responsibilities around home
[cf Grant v Edwards, Rosset]
assurance must be about ownership, or reasonably
James v Thomas
understood to be so
(1) assurance to one’s detriment can be assumed, unless
legal owner can establish another explanation for
Greasley v Cooke
detriment
(2) [detriment]] giving up promising career
Re Basham detriment ca be lost opportunities or non-property related
for acquisition, you need express or inferred common
Capehorn v Harris
intention, but for quantification you may have imputed
(1) agreement to vary existing shares must be express
Barnes v Phillips or inferred, but intention about quantification may
be imputed
[acqusition cases] share acquired by claimant (in common)
Clough v Kelly
should be connected to the common interest
[constructive trust] size of share not correlated to size of
Woolidge BS v Dichman payment, since payment only used as evidence of existence
of interest
[quantification]
(1) to determine existence of interest = intention
Oxley v Hiscock* (2) to determine share, inquire into the whole course of
dealing between parties = fair having regard to all
circumstances
O’Kelly v Davies if no other basis for quantification, a test of fairness applies
court will be slow to infer only from conduct that parties
James v Thomas intended to vary existing beneficial interests established at
the time of acquisition
where acquisition/agreement to vary has been established
Capehorn v Harris by express or inferred common intention, court can impute
intention of fairness of share in quantifing
[estoppel] can’t infer common intention, but sufficient
Arif v Anwar assruance for proprietary estoppel = actual 25% share of
the equity
[estoppel] assurances insufficient to found constructive trust,
Southwell v Blackburn
but can found proprietary estoppel (award of lump sum)
Operation of Trusts + Third Parties

City of London BS v Flegg two legal owners (trustees) – overreaching parents

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Land Law Cases
Williams & Glyn’s Bank v Boland
Mortgage Express v Lambert
Ahmed v Kendrick
William & Glyn’s Bank v Boland
Paddington Building Society v
**
Menderlsohn
Scott v Southern Pacific Mortgages
** Abbey National v Cann
Equity and Law Home Loans v
**
Prestidge
s. 36(2) – LPA 1925
Gould v Kemp
Goodman v Gallant
Williams v Hensman
Kinch v Bullard
Quingley v Masterson
Harris v Goddard
Burgess v Rawnsley
+ (2) uncertainty over whethere s. 36(2) LPA can only be
Davis v Smith
TOLATA Provisions
where dealing with two legal trustees, the rights of
beneficiaries will be overreached
one legal owner (one trustee)
can’t overreach right by dealing with one owner, so that
equitable interests under trust can be overriding
Only overriding interests that are obvious upon inspection
(or so asserted), or known of can override; occupation
interests are capable of overriding
if mortgage not properly executed by all trustees, it will
only take effect as equitable mortgage ovet the share of
those who executed it – s. 63 LPA
(1) sale to one trustee = no overreaching
(2) no overreaching = normal s. 29 priority rule applies
and actual occupation is important
(3) priority not waived if owner failed to discolse, but
no one asked him
[implied consent] if you know that some of the price will
have to be raised by mortgage, can’t later assert
overridining interest based on AO
for priority under para 2, equitable right must exist before
the mortgage
furniture arrived 35 mins after transfer (wasn’t in AP at that
time)
if equitable owner has given express consent = priority is
waived
[consent] if a second mortgage is granted, to which one
doesn’t consent, the second mortgage has priority over C
only to the extent of the first mortgage
Severance
severance only possible in respect of equitable title
can’t sever by will
severance = tenants in common in equal shares, irrespective
of price paid by each, unless there is written agreement
indicating otherwise
all rules relating to severance
notice of severance needs to be sent, but not necessarily
received
broad view of severance by written notice where clear that
survivorship would no longer be appropriate
[written severance] there must be an intention to effect
immediate severance
(1) [severance by mutual agreement] can be inference
from facts/conduct
used in cases where legal and equitable owners are
same
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Land Law Cases
trustees have in relation to land all the powers of an
s. 6(1)
abslute owner, unless a notice is entered on register
where equitable owners are of full age and capacity and
s. 6(2) absolutely entitled to the land, trustess can convey land to
them
s. 6(5) trustees must have regard to rights of the beneficiaries
requirement for consent from beneficiaries (if either (a)
s. 10 provided for in document creating trust or (b) by order of
court)
s. 11 limited duty to consult beneficiaries in possession
beneficiary with interest in possession has the right to
s. 12 exercise it unless: land is unsuitable for occupation, purpose
of trust was not occupation, s. 13
s. 13
general duty to exercise such care and skill as reasonably
Trustee Act, s. 1
expected in circumstances
court has jurisdiction to make any order related to the
s. 14
power and function of the trustees (including sale)
criteria that courts should take into consideration in all cases
s. 15(1)
except bankruptcy
criteria that courts should take into consideration in cases of
s. 335A Insolvency Act 1986
bankruptcy
Factors Influencing TOLATA
no longer a presumption of sale, but person with uncharged
Motgage Corporation v Shaire share needs to take over mortgage payments in return for
no sale ordered
White v White s. 15(1) factors is not an exhaustive list
s. 12 right to possession not operative if land is unabailable
Creasey v Sole
or unsuitable for occupation
(1) court order must take into consideration function of
legal owner, not just matters between equitable
Begum v Hafiz owners
(2) court will not order equitable owner to sell their
share
in dispute between co-owner and trustee in bankruptc, court
s. 335A Insolvency Act will order sale after 12 months unless exceptional
circumstances
** Jones v Challenger whether property still needed as matrimonial home
(1) in dispute between co-owners, more likely to
postpone sale
39 Chun v Ho (2) whether property needed to provide
accomondation for duration of the lives of co-
owners (until completion of education, here)
sale is more likely, even if family have registed occupation
Fred Perry v Genis (2014)
rights
postponement in case of bakruptcy for more that 1y is very,
Everitt v Budhram
very rare
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Land Law Cases
person seeking to postpone sale should adduce evidence of
Begum v Cockerton
truly exceptional circumstances
Nicholls v Lan [HR] bankruptcy strict rule is human rights-compliant
if sale under s.14 is postponed, you can make borrower
Aliiance & Leicester v Slayford
bankrupt and order under 2. 335A
40 Harris v Harris whether needed for accomodation for a survivor

41 Williams v Williams whether needed for children of a broken down relationship

Co-owner able to postpone sale for 1 year to safeguard
home for children; mortgage took effect over more than
42 Edwards v Lloyds TSB 50% of property
General circumstances of the beneficiaries (age, health,
suitability of premises)
National Westminster Bank v Sale postponed for 2 years because of ongoing litigation
Rushmer that might result in money sufficient to pay back the loan
43 Bedson v Bedson Whether property required for business to continue
Whether there has been misconduct by person applying for
44 Halifax v Muirhead
sale – solicitor wrongly altered documents
Creditor shouldn’t be kept out of his money, unless there are
45 Bank of Ireland v Bell
clear reasons to refuse sale
Made clear that rights of creditors should not prevail
46 Mortgage Corp v Shaire
automatically.
wife guaranteed mortgage, but didn’t get independent legal
advice
(1) undue influence presumed in trusting relationships
47 First National Bank v Achampong**
(2) mortgage was only equitable over husband’s
severed share = apply under s. 14 TOLATA = sale
[see also Edwards v RBS]
TOLATA not applicable narrowly, because passed a little
48 Banker’s Trust v Namdar
after – results might have been different (Gibson LJ)
49 Finch v Hall If co-owners have expressly agreed not to sell = no sale
Wishes of beneficiaries critical, although consent not
formally required; postponement of sale in accordnace with
original intentions of the creator of the trust
50 Dear v Robinson
Previous order for sale rescinded because circumstances
had changed and majority of beneficiaries no longer
wanted an immediate sale
Because there was enough money left after paying off the
debt to provide a house for claimant, this was an explicit
51 Edwards v RBS reason for ordering sale

[see also Putnam & Sons v Taylor (2009)]

Needs of bankrupt not taken into account in s. 335A; but
52 Everritt v Budhram mental stateof spouse was sufficiently exceptinal to justify
postponement beyond 1 year of grace
doubts whether ‘exceptional circumstances” and
53 Barca v Mears (2004) presumption for creditors is convention compatible
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Land Law Cases
Re Citro did assimiltte posision of married, unmarried and
unrelational co-owners
assimilated position of co-owners that are marries,
** In Re Citro
unmarried and unrelational with regard to s. 15 factors
said test within 335A might have to be reinterpreted, but
54 Donohoe v Ingram still applied strict test of ‘exceptional circumstances’ to rule
out claim
55 Nicholls v Lan S335A is convention-compatible in its current interpretation
possible that properitary claim give way to an Article 8
56 Manchester CC v Pinnock
defence based on exceptional circumstances of the occupier
(1) Need for proportionality between claims of
57 Ford v Alexander creditors and home owner recognised;
(2) S. 15 almost always causes proportionate result
Ellison v Cleghorn order in relation to partition of the land

Nat West Bank v Rushmer order relationg to occupation and payment of money

Holman v Holmes order postponing or preventing sale