Co-Ownership, Gifts & Sales and Trusts

1 Found helpful • 68 Pages • Complete Study Notes • Year: Pre-2021 • Previously uploaded under: LLB270 - Property and Trusts B

Other ‘shared’ interests in property • essence of Co-Ownership: unity of possession each co-owner entitled to possession of whole of the land • Different from co-ownership: other forms of shared interests: o company title : apartments where owner owns shares in company that owns fee simple (50s – 60s) o Strata community title: individual ownership rights over specified space • Strata Schemes (Freehold Development) Act 1973 (NSW) • Strata Schemes Management Act 1996 (NSW) • Community Land Development Act 1989 (NSW) • Community Land Management Act 1989 (NSW) Traditionally 4 types of Co-Ownership 1. Co-parcenary 2. Tenancy by entireties 3. Tenancy-in-Common (TIC) 4. Joint Tenancy (JT) Tenancy In Common (TIC) • Each co-owner has discrete interest in the land which is not a separate portion of it, but rather a portion of the rights which make up ownership of the whole • This proportion of rights can be in whatever portion • Undivided share of tenancy-in-common can be sold separately or devised by will Joint Tenancy (JT) • No distribution of ownership in that each owner is regarded as the owner of the whole of the property with the other tenants • No notion of individual share • Main ‘benefit’ right of survivorship: ‘de facto will’, ‘don’t have to get probate (Supreme Court filed fees validate will) JT’s 4 Unities 1. Title: all joint tenants have to take under same instrument (but note exception s 9 Trustee Act, new trustees under separate instruments, s 9 preserves their status as joint tenants) 2. Interest: must be identical in nature of estate, duration 3. Unity of Possession: each tenant is entitled to a share of the whole of the land to be enjoyed together with others (this is the only unity that is the same as TIC) 4. Unity of Time: take interest at the same time, i.e interests vests at same time (exception of s 9 Trustees) NOTE: the presences of these four unities will not automatically create a joint tenancy - instrument creating (transferring interest may expressly provide that the parties take their interest as TIC) Right of survivorship (jus accrescendi): - when one tenant dies, the whole of his/her interest automatically passes to the surviving joint tenants until only one is left and they become the sole owner. - Property owned at death cannot pass pursuant to the tenants will - At Common Law: because corporations could not die (the same way as a natural person could) they could not hold property as JT o However: s 25 CA 1919: permits they can, survivorship principle relevant where dissolution of company - ISSUE: where joint tenants perish in a common disaster? o S 35 CA: … in all cases where two or more persons have died under circumstances rendering it uncertain which of them survived, the deaths shall for the purposes of affecting the title to any property, be presumed to have taken place in order of seniority, and the younger be deemed to have survived the older… - Hickman v Peacey [1945] AC 305: 4 people killed in house during bomb blast (WWII) – House of Lords held that the (English) equivalent of our s 35 CA applied here o Not restricted to same accident or cause of death, can be different places Halbert v Myner [1981] 2 NSWLR 659: but only applies where fact of death is known, cannot apply where presumed dead (by CL) where someone has not been seen/heard of for 7 years.

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