The Equitas, House-39/A, 3 Floor, Dhanmondi-8; Cell- 01789444999. the maequita> ‘SAYED-UL-HAQUE (Dinar) PROPERTY LAW € Barrister of Lincoln's Inn Express Co-ownership vy LLB (University of Manchester) P.Q. Kes PGDL (City University, London) ‘Advocate, Supreme Court of Bangladesh. Contact-01789444999 EXPRESS CO-OWNERSHIP 2014, Zone-A. 8 ‘A few years ago Elizabeth, Mary and Sylvia bought a country cottage together. They were registered as joint tenants and declared in the TR1 form that they held title in trust for themselves as joint tenants. Elizabeth contributed 50% of the purchase price, Mary 40%, and Sylvia 10%. Initially they used the cottage for occasional weekends, but Sylvia soon found a job nearby and began living in the cottage. Her boyfriend Jim moved in with her, to help look after their new born baby. Last year Elizabeth was posted abroad and sold her beneficial interest in the cottage to Mary. In January Mary wrote to Sylvia offering to sell her interest in the cottage to Sylvia. Sylvia replied that she and Jim “would immediately start saving so that they can take her up on her offer”. In February Mary was. made redundant and wrote to Syivia saying she needed to sell her share now. Syivia explained she would definitely be in a position to buy out Mary's share in a couple of years but Mary has explained she cannot wait that long and is insisting, despite Syivia’s objections, that the cottage be sold immediately. (a) Advise Syivia. (b) If the cottage was sold now, how would the proceeds of sale be divided? (c) How, if at all, would your advice in (a) differ in EACH of the following ALTERNATIVE circumstances: (i) The property was conveyed into their joint names but no reference to any trust was made in the conveyance; (ii) Elizabeth, Mary and Sylvia were business partners and no reference to any trust was made in the conveyance; (iil) Mary was adjudged bankrupt; (iv) Sylvia died yesterday leaving her entire estate to Jim? SKELETON ANSWER aA Firstly, consider whether Elizabeth Mary and Sylvia are Joint tenants (JT) or tenancy-in-common (TIC) in equity. The declaration in the TR1 form is conclusive as to the beneficial interest being held jointly and thus the individual percentage contributions are an irrelevance. Goodman v Gallant law : Elizabeth Mary Syivia: Joint tenants Equity: Elizabeth Mary Sylvia: Joint tenants 2013; ELIZABETH SOLD HER SHARE TO MARY Elizabeth has clearly acted upon her share by the irrevocable action of selling it, and thus severs her interest, which means that Mary is a tenant in common of one third and that her and Sylvia jointly own two thirds of the beneficial interest. (Williams v Hensman) A sale of the joint tenant's beneficial interest (Cray v Wills). In equity a sale will take place as soon as there is a specifically enforceable contract to sell. Barrister Sayed-UI-Haque 10f3 ornareThe Equitas, House-39/A, 3“ Floor, Dhanmondi-8; Cell- 01789444999. Bees MequitaS Law : Elizabeth Mary Sylvia: Joint tenants Equity: Elizabeth Mary (1/3 as TIC) Mary + Sylvia (2/3 as JT) ‘SHARE: Mary 2/3 and Sylvia 1/3 Does Mary's letter to Sylvia in January count as a written severance under s.36(2) LPA 1925? Seems unlikely as it does not manifest an immediate intention to sever. Sylvia's remark about saving up seems to confirm the lack of immediacy regarding Mary's plan. Re Drapers Conveyance. Severance will only be effective if the joint tenant manifests an Intention of an immediate desire to sever his interest. if would not be sufficient to express an intention to sever sometime in the future. Harris v Goddard No specific form is necessary for the notice. The notice can take any form so long as it clearly shows a wish to sever immediately. It can be contained in another document such as an application to court for an order concerning the property. Re Draper's Conveyance No mutual agreement also Burgess v Rawnsley, Nielson Jones v Fedden Does Mary’s letter in February comply with s.36(2) LPA 1925? Yes. Law : Elizabeth Mary Sylvia: Joint tenants Equity: Mary (1/3 as TIC) Mary (1/3) Sylvia (1/3) as JT) DISPUTE REGARDING SALE OF THE PROPERTY Either Sylvia or Mary could apply to court under s.14 TOLATA and under s.15 the initial purpose [s.15(a)}, changed purpose [s.15(b)] and the welfare of the child [s.15(c)] would all be relevant considerations to which the court is required to have regard. Was use ‘for occasional weekends’ the original purpose? Did the purpose change from holiday home to family home when Sylvia began living in the cottage and Jim and their baby moved in? Whether the property is required in order that a business may continue, the land having been purchased for that purpose, as in Bedson v. Bedson (1965). Purpose for which the property was bought :. Whether the property is required in order to provide accommodation for the lives of the co-owners, or that of the survivor (Hanis v. Harris (1996)) or until the ‘occurrence of any event. Thus, in Chun v. Ho, sale was postponed until the completion of the education of one of the co-owners. Whether a postponement of sale would be ordered is a moot point although Sylvia is in a better position than she would otherwise be in the absence of a secured creditor petitioning for a sale. Dtnar Barrister Sayed-Ul-Haque 2063The Equitas, House-39/A, 3“ Floor, Dhanmondi-8; Cell- 01789444999. the Ee uitaS Welfare of minor: Whether the property is needed for the provision of a family home for the children of a relationship that has broken down (Williams v. Willams). Under section 15 of TOLATA 1996, the welfare ‘of any minor occupying the land as his home is made relevant expressly, thus resolving the doubts expressed in Re Holliday and Re Evers’ Trust. This criterion was employed to good effect in Edwards v. Lloyds TSB (2004), in which a co-owner was able to postpone a sale for five years in order to safeguard a home for the children of the relationship, even though the application was made by a mortgagee whose mortgage took effect over more than 50 per cent of the value of the property. (b) One third to Sylvia and two thirds to Mary. () (i) If the property was conveyed into their joint names but no reference to any trust was made in the ‘conveyance, then it indicates that there is no express declaration that they hold the property as JTs. According to Stack v Dowden, in a domestic context, equity follows the law when the legal title is in joint names (absent requisite evidence to the contrary) rather than adopting a resulting trust based upon their proportionate contributions. (ii) If Elizabeth, Mary and Sylvia were business partners and no reference to any trust was made in the conveyance, they would be tenants in common on a presumed resulting trust in proportion to their contributions. +, Re Fuller's Contract. shiver trustee in bankruptcy would proceed under the more favourable s.335A IA 1986 and, in the ibsence of exceptional circumstances, would prevail after, at most, a 12-month delay. * court should have regard to 8.3354 IA 1986 and ‘make such orderas it thinks just and reasonable having regard to the interests of the bankrupt's creditors’ and ‘all the circumstances of the case other than the needs of the bankrupt’. In addition, where the application is in respect of a family home, the court should also have regard to: a) The conduct of the spouse / civil partner in contributing towards the bankruptcy b) The needs and financial; resources of the spouse/ civil partner and c) needs of any children ‘ ruptey: court may grant the bankrupt a breathing pace upto the frst year anniversary of the bankruptcy in order that he may sort out his financial affairs or make alternative living arrangements + Where application for sale is made is made after the first year of bankruptcy court assumes interests of creditors outweigh all other considerations, except where exceptional circumstances may exist: $.335A(3) A 1986, What amounts to exceptional circumstances under $.335A(3) IA 1986? These must be truly extreme and typically involve issues of severe illness or disability-Re Raval ()) Did Mary's final note sever by written notice? In which case Sylvia was a tenant in common of one ‘third when she died and could indeed leave that share to Jim. Barrister Sayed-Ul-Haque 3 of3 ornae