Co-ownership

LA2015 Week 4

EQUITABLE INTERESTS IN LAND

But first… continuing the module Fragmenting Interests in Land

Equity -> ‘equitable rights’Common law -> ‘legal

rights’Statute -> either legal or

equitable

Fragmenting the one estate

Equitable interest

Legal Interest

Legal interest – there for all to see

Underneath, a court may find an equitable interest that differs from the legal

interest(except it’s not rotten…)

CONCURRENT INTERESTS IN LAND

Structure of this module

What is it Rights of parties

Ending co-

ownership

NATURE OF CO-OWNERSHIP

No one joint tenant has a distinct and separate title

A joint tenancy is

characterised by the four unities and the right of

survivorship

Wright v Gibbons – the 3 women held as joint tenants

Olinda

Ethel Rose

Bessie

Melba

When 2 severed their joint tenancy, there was no more unity with the third…

Olinda

Ethel Rose

Bessie

Melba

The means of creating co-

ownership differ as between

common law and statute.

RIGHTS OF CO-OWNERS INTER SE

Co-ownership

There are four key

rights that exist

between co-owners

Occupation rent

A/c of profits

Trespass & waste

Repair &

maint

What are the

implications of a

common right to

possession of the whole?

When might exclusion be

wrongful?

Is exclusion the only circumstance resulting in a right to occupation rent?

Co-owners may have a right to income and profits

Who is responsible for

the cost of repairs &

maintenance?

Can a co-owner

trespass on jointly owned

property?

ENDING CO-OWNERSHIPCo-ownership

Terminating a tenancy in common occurs in generally the same way as termination of a joint tenancy except forseverance

Apply to the court to order that the landbe split into 3 parts: partition

A, B and C want to get out of their relationship but can’t agree; have nocourse of dealings; are still all alive…

what can they do?

A, B and C hold as joint tenants

Partition

If A, B and C cannot agree on ending their co-ownership, any of them may

apply to the court for an order for partition

A B C

Contrast a court order for statutory trust for sale

$ $ $A’s share of the proceeds of sale

B’s share of the

proceeds of sale

C’s share of the

proceeds of sale

Harry and Dick own property as tenants in common. Dick leaves town to stay with his parents on their farm. Two years later, Dick discovers that: • During the two year period, Harry has let Dick’s room to

Wilma for $80.00 a week and has used the rest of the house for his residence.

• Harry has spent $6,000 in repairs and maintenance (including painting) the house, and a further $10,000 on renovations.

• Harry has cut down all the trees and shrubs in the yard above 1.5 metres in height.

Dick comes to you for advice.1. Can he claim for a share of Wilma’s rent?2. Can he sue Harry for occupation rent?3. Is he liable to contribute to the cost of the repairs and

maintenance?4. Is he liable to contribute to the cost of the renovations?5. Can he recover damages from Harry for cutting down the

trees and shrubs?

• Joe, Andy and Mike inherit a farm as joint tenants. They farm together, pooling their money in a joint account. They argue constantly, and one day Joe grabs Mike, several centimeters shorter than Joe, by the collar aggressively demanding that he leave the farm immediately. Hearing the commotion, Andy enters the room and in a show of support for Mike, decides to leave the farm as well.

• The next week Mike and Andy send a letter to Joe demanding that he give them each a third of the profits of the farm and that he pay each of them rent. They also demand that Joe sells the ute and farm equipment that was bought from the money in the joint account and split the proceeds between the three of them. Joe refuses to pay either rent or a percentage of the farm profits, and in turn demands that they pay him two thirds of the cost of a new roof that he is just about to have put onto the farmhouse.

• Advise Mike and Andy including as to how they can terminate their co-ownership.