Co-Ownership

Co-Ownership

1. When more than 1 owner there is equity

   • Always a legal and beneficial owner, can be same person or 2 separate people
     • Statutory trusts are now trusts of land (Post 1995) TLATA 1996 Important legislation for this
       • So now, as soon as more than 1 owner in law or equity, then a trust & TLATA applies
       • Trusts can be created expressly - must be evidenced in writing
         • No formalities except intention must be evidenced, must be clear that a trusts been created
           • Subject matter & object of the trust must be sufficiently certain
             • Court may still find an implied trust if not created expressly
       • Or Impliedly - no requirement for writing
         • Resulting - usually where there is a joint contribution to the purchase, equity will imply a RT matching %'s of the contribution
         • Constructive - Much wider than RT, much more creative. Can arise by parties conduct and intentions, ie spending money making improvements
           • Not limited to who paid what in monetary terms

2. 2 forms of co-ownership

   • Joint tenancy
     • Property owned by tenants as 1 unit, no individual shares, % contribution doesn't matter, rights of survivorship, as 1 dies unit gets smaller
       • JT's cannot give/pass on their interest as do not have a share which is theirs alone to give away
     • To create a JT - 4 Unities must be present. PITT
       • P - Possession. All owners have equal rights to use the estate/lease
         • Each JT owns the whole collectively, must show that each JT intends to share use of all the property
           • One co-owner cannot evict another
       • I - Interest. All JT's hold the same estate
         • All JT's hold he same estate (cannot be that one signs for 10 years and another 12 years)
           • All JT's must join in a sale and rents and profits divided equally
             • No JT if interests are different - ie free and leasehold
       • T - Title. Each JT must acquire title from the same act or from the same document
       • T - Time. The interest of each owner must vest at the same time.
         • All must be conferred at same point in time and as a unit (not applicable to gifts by will)
           • Under JT's, right to survivorship, last one alive gets everything. If 2 or more die at same time, assumed eldest died first
       • Express creation of JT occurs when grant expressly provides that is how the land is to be held
         • JT impliedly created when grant is silent. Presumption is raised that new owners will own the property beneficially as JT's
           • Rationale is that equity follows the law - PETTIT v PETTIT 1970
             • Presumption could be rebutted, but quite difficult to do!
   • TIC on next page