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Valerie Casey Co- Ownership Co- ownership concerns the ownership of property by more than one person and the most common forms are joint tenancies and tenancies in common.
Joint tenancy The most significant feature of a Joint tenancy is the right to survivorship. Therefore Survivorship restricts the freedom of alienation of the property as all of the interest of a deceased co-owner passes to the other co-owner s on his death.
The intestacy rules have no effect on this neither does a will. Joint tenants hold single unified interests in the entire property. There are four common law requirements necessary to create a joint tenancy, which are unity of possession, interest, time, title.
This category normally applies to married couples acquiring residential property who want the right of survivorship to apply. Creation of a joint tenancy at law The common law favours joint tenancies because they prevent the fragmentation of properties into large holdings.
At common law there is a presumption in favour of joint tenancy rather than a tenancy in common. It is presumed that a joint tenancy is created every time there is more than one owner of land.
See Morely v Bird . This presumption is rebutted in two circumstances: This would sever the unities and convert the joint tenancy into a tenancy in common.
Severance of Joint Tenancy at law Severance is the mechanism for the transformation of a joint tenancy into a tenancy in common and can occur at law or in equity depending on the circumstances. Destruction of one or more of the four unities will cause a severance of aa joint tenancy at law or in equity.
Severance at law In order to cause severance the common law required some transaction or dealing which destroys one of the unities. Mere intention of the parties whether mutual or unilateral is not enough. For severance to be valid at common law it must be done formally.
In addition to a proper conveyance the s. However severance has been allowed as the law now recognises that undue restrictions on alienation is unwanted and people want to convert to tenancies in common so they can pass their share to their family.
Alienation to a 3rd party: This occurs where for example one joint tenant out of 4 sells to a third party. The remaining three joint tenants are still joint tenants between each other, because the four unities still exist between them.
The third party becomes a tenant in common in realtion to the other joint tenants. This method of severance has been abused in the past where there are two joint tenants and one alienated their share to a third party, to the use of themselves on truast for themselves.
As this destroyed the unities of time, title and interest the result was a tenancy in common. The law allowed a co-tenant to unilaterally without permission of the other joint tanant s to change the nature of the tenancy.
Now a joint tenant must get the prior consent in writing of the other tenants if they want to alienate their interest in a property. According to Woods this provision provides protection for vulnerable co-owners.
Acquisition of an additional interest a joint tenancy can be severed at law by the acquisition of an addition interest. This is where one joint tenant acquires an additional interest in the land, destroying the unity of interest between him and the other co-owners. As the four unities continue to operate between the non-acting tenants, they continue to stand in a joint tenancy in relation to one another, but stand as one in a tenancy in common in relation to the acting joint tenant.
Prior written consent is now required for this type of severance under s. An act of a third party exercising statutory powers Unlike in the other cases, the severance of a joint tenancy by this means is involuntary. Prior to LCLRA the most common way for an involutionary severance arose when a creditor obtained a judgment mortgage over the land of a joint tenant.
With unregistered land but not registered land this had the affect of severing the tenancy, so that the only share of ownership held by the debtor tenant was affected by the judgment mortgage.
It did not have the same effect on registered land as a judgment mortgage created a charge over the interest of the debtor. Due to the anomalous different treatment of registered an unregistered land the s.
The holder of a judgment mortgage can apply to court to have the property sold. In which case the court decide on the distribution of the assets. Severance of a Joint tenancy in Equity Severance can occur in equity even in the absence of the formalities for severing in common law in three scenarios.
This is because equity pays greater regard to the subjective intention of the parties to a transaction and recognises that joint tenants can sever by mutual agreement.
Prior written consent in writing is not required in equity under s.Types of Business Entities Your goal is to maximize the flexibility of the ownership structure by considering the unique needs of the business as well as the personal needs of the owner or.
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There are various types of business in private sector. need reference materials either quoting or paraphrasing. referencing should also be complete and correctly formatted, and consist of a) in text citations (quotes and paraphrases) b) reference list at the end of the essay.
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