Co-Ownership Law Notes PDF

**Co-ownership** **Definition:** **Is a situation where two or more people purchase or lease the property at the same time** **2 types of Co-ownership:** 1. **Joint Tenancy** - Arises when land is conveyed to 2 or more person **WITHOUT indication of distinct share** Is a method where:...

**Co-ownership** **Definition:** **Is a situation where two or more people purchase or lease the property at the same time** **2 types of Co-ownership:** 1. **Joint Tenancy** - Arises when land is conveyed to 2 or more person **WITHOUT indication of distinct share** Is a method where: - Co-owners not regarded as owning shares in the land - BUT rather owning the whole estate together Among themselves - Have separate rights Against other people - They act as a single tenant NOT treated as separate owners but inseparable group owners **Characteristic of JT** For this relationship to exist, one need to establish 4 unities (essential to the joint nature of JT) 1. Unity of possession - All joint tenant can posses land together - None of them hold any part of land exclusively that other don't. 2. Unity of interest - The interest of each joint tenant must be of the **same quantity, duration, nature & extent** - All profit/rent will be divided equally 3. Unity of title - Constitute as a single tenant - Get their title from same act/instrument 4. Unity of time - Must take land same time - Transfer of property to them **Right of survivorship:** - Not able to dispose his interest by will on his death or pass on intestacy (if no will) Death of one owner - Rights will be automatically pass to the surviving JT , continue until left sole tenant - Last one will be the sole beneficial, will get to dispose as he please **If both die tgth, the one that die last - property pass to descendant** **if dk who die first, Older one is presumed to die first - younger one presumes to be survivor** 2. **Tenancy in common** - Arises whenever land is conveyed by two or more person - WITH indication that they are going to take distinct shares -- words of severance (divided) Though, ownership is only undivided share - holding a portion of ownership in a property without exclusive rights to any specific part of it (equal rights) Is for practical purposes & several tenancy/ownership - each tenant stand his own undivided share same like how he would if his were a sole tenant (as a whole) - The **tenant\'s undivided share** is treated as if it were a complete, standalone ownership of that percentage of the property. Entitled to his share - Can dispose at dead or life No one can claim exclusive possession of any specific part until property is physically divided or sold - Profits/divided part of property will be distributed accordingly to their shares **Characteristic of JIC** Only unity present is: - Unity of possession, 3 other don't need to be present - Right of survivorship don't apply One die, will pass his share to descendent or will but not to the surviving tenant. **Different position in law & equity** JT is convenient - Co-owner always decreasing (rights of survivorship) - Helps with the dealing of legal estate, concentrate title to fewer hand JIC -- increase number of owner, can happen when share passes on his death to diff people JT may be unfair & harsh on co owner Even tho, it might be clear that JT exist but equity (fairness) leaned towards JIC arrangement It will regard the tenant as JIC instead - The approach of the courts is where what is strictly a joint tenancy is treated in equity as a tenancy-in-common. For example: - If one party paid more - Purchased by partners - Taken mortgage by two or more mortgagee **Severance of JT** - Don't need to remain as JT - Its possible for JT to sever his interest & convert to JIC  **Method of Severance** - Notice in writing If posted, should be served on all other JT tenant in registered letter at their last known place they stay or their business (irrelevant if co owner does not receive knowledge of notice) - Mutual agreement of all the joint tenant Be expressed / inferred from the conduct of the parties (managing their shares separately) - Sales by a joint tenant The purchaser will hold his share of the property as TIC with rest of owner The rest of owner is still JT among themselves If one JT kill the other, the right of survivorship wont operate because will allow him to benefit from his crime -- Lost right thru forfeiture. **Fixtures** **Definition** - Anything which has become so attached to the land as to form in law (part of land) - Not fixture = Chattel **Two main element (fixture)** 1. **The degree of annexation** - Some connection with the land/building must be shown Object that rest on the ground by its own weight -- NOT FIXTURE E.g -- Water tank - object attached to the building/land in substantial manner even if its not hard to remove (FIXTURE) E.g -- Nail, Screws - Useful for showing who the responsibility of proof lies - If item is firmly attached to property, law will assume is a fixture The responsibility of proof lies on the part that claim that its not a fixture 2. **Purpose of Annexation** - Main factor of determining if a object become a fixture The Modern tendency is to regard degree of annexation (how attached) is mainly significant in helping to prove the purpose of annexation (reason why its attached) - The more secure an object is attached - More damage it'll cause by it removal Object intended to be form as a permanent part of the land Question to be ask to determine the purpose of annexation - Was the intention effect a permanent (FIXTURE) or temporary improvement (CHATTEL) - To enjoy chattel as chattel If evident intention was to effect a permanent improvement to land -- fixture Even if its only attached by its own weight (e.g Statue forming apart of design/ Wall of stones ) **Rights to remove fixtures** If object classified as fixtures, general rule = X be removed If sell to a buyer, seller is not be remove the object - But if both agree In the term of lease/ tenancy, object attached by tenant as to form fixture - Belong to landlord, not tenant - Left for landlord at the end of tenancy **EXCEPTION -- Tenant Fixture** **Two categories** 1. **Trade fixtures** If fixture attached for trade or business - Can be remove during the continuous of the term E.g Fixed steam engines, boiler, shrub planted by a market gardener 2. **Ornamental and domestic fixtures** Can be removed on the condition - No substantial damage to property/land **X** removed if it forms a permanent improvement to the property. **E.g** - ornamental chimney pieces, window blinds, stoves, looking glasses, beds fastened to the wall, cupboards & book cases fixed with ties to the wall. **Rights of tenant to remove 'tenant fixture'** General rule - tenant may remove such fixtures as he is entitled to remove at any time during the lease. the landlord resumes possession, the tenant's rights will be lost. Effect of failure to remove the fixture in time - extinguish rights - become a part of the land even if the landlord has consented to their removal out of time and subsequently refuses - the tenant's only remedy is for damages. A diagram of a problem solution Description automatically generated **Easement** **Definition** - Privilege or right where owner of one piece of land (Dominant tenement) has over the another (Servient tenement) - allow something to be done - restrict from doing something Nature of easement 1. **Positive easement** - Allow owner of dominant land to walk on servient tenement 2. **Negative easement** - Not to use the land for specific use **Characteristic of easement** a. Is a rights in the 'soil of another' Dominant tenement & servient tenement **X** owned & occupied by same person b. Imposed on the servient tenement **X** the owner - Owner on servient tenement may change Easement will continue for the benefit of the owner for the time being of dominant tenement Vice versa, continue to burden the owner of servient tenement c. Always attached to land - Easement must relate to the enjoyment of the dominant tenement & exist fr benefit **X** exist if unconnected w enjoyment of land d. Must be capable of forming the subject matter of a grant by deed Must be capable grantor - Only owner of full duration of the estate is able to grant easement to another Tenant only has a few years of use X capable grantor Must be a capable grantee - User of easement must be definite & able to be clearly identified Refer to the owners of the dominant tenement and his immediate family members. - If the people making use of the right is not capable of being clearly defined & changes frequently the right must be capable of reasonable definition & have the characteristics of an easement - This means that the right is clearly understood and is not vague in nature **Acquisition of easement** a. Created by the **Act of parliament** under - **The Land Title Act** The implied easement are passage to water, electricity, drainage, gas and sewerage for housing estate, rights of way, party wall. - **The Land Titles (Strata) Act** There are implied easements of support, shelter, passage of water, drainage and other services, over-hanging eaves and other erected projections. b. **Under common law easement can be create by express grant / reservation** - a written document is created to record the easement arises when a landowner sells part of his land while retaining the remainder. - When he sell servient tenement & retain the dominant tenement Reserve easement for himself over the land sold - Sell of dominant tenement -- Grant the purchaser right over the land retained no written document has been created c. **Easement can also be by implied reservation or grant.** Arises when a landowner sells part of his land while retaining the remainder. For implied reservation, - rule is that a grant is always held against the owner of the dominant tenement & in favour of the buyer of the servient tenement. no easement will be implied in favour of a seller of the servient land who retains the dominant tenement - if he wishes to reserve an easement he must do so expressly. **EXCEPTION:** i. **Easement of necessity** Under common law, easement can be created by necessity - If seller keeps a small piece of land (retain) that is surrounded by the land they sell (granted) - Law presumes they have the right to cross the land to reach their piece ii. Easements intended to be created by the parties Implied in favour of grantee even if its not express in the conveyance - If two houses rely on each other for support and one is sold, the law assumes that both houses still have the right to support each other, reservation of easement of support will be implied if its seems like what the buyer and seller intended On the other hand, **for implied grant**, the rule is that a grant is always in favour of the buyer of the dominant tenement. i. Easements of necessity If the land owner sells a piece of land which is completely surrounded by land owned by others - a right of way is implied in favour of the land sold over the seller's land. ii. Easements intended to be created by the parties iii. Easements necessary for the enjoyment of some right where it is absolutely necessary for a right to be present before the property can be used for some right attached to that property, an easement may be created by implied grant For example - if a landowner sells a property for use as a food court or coffeeshop, it is clear that in order for the property to be used - there must be an air exhaust system together with chimney bringing the exhaust to the atmosphere. - In this case, the courts may imply that an easement of support for the chimney be granted for it to be attached to the building. **Extinguishment of Easement** 1. **Express release** At a law were deed is necessary - BUT in equity (fairness) -- an informal release will be effective If it would be inequitable for the dominant owner to claim that the right still exist - Where the owner of the dominant tenement has orally consented to an easement being ended - the servient owner has spent money on the faith of such consent (build things after ended) it would be unfair for the dominant owner to insist on having the easement later. 2. **Implied release** Where the dominant owner shows by his conduct an intention to release the right - it will be extinguished. Simply not using the easement (non user) is not enough to show - may be evidence of intention to abandon the rights 3. **Unity of ownership and possession** When both the dominant and servient tenements come into the ownership and possession of one owner - all easements are extinguished. If there is unity of ownership without unity of possession or vice versa, it is not sufficient to extinguish the easements. **Remedies** Where the owner of the dominant tenement is not able to fully enjoy the benefit of the easement due to the actions of the owner of the servient tenement, he may seek remedies. 1. **Abatement** - this refers to self-help where the injured party may on his own remove attempt to solve the problem E.g - where a right of way exist for his benefit which has been blocked up, he may remove the blockage provided that permission be obtained to enter into another person's land 2. **Damages** an aggrieved owner may claim monetary compensation where actual loss has been suffered 3. **Specific Performance** - an order of the court may be obtained to order the owner of the servient tenement to do what he has promised to do 4. **Injunction** where the easement is negative in nature - an order of the court may be obtained to order the owner of the servient tenement not to do what he has promised not to do **Restrictive covenant** **Definition land covenant** - **A promise made by deed -- between two neighbouring land owners** - **for the benefit of the neighbouring land** **Covenantor --** Landowner making the promise on behalf of his land (subjected to burden) **Covenantee --** Landowner to whom the promise is made on behalf of his land It is on his land where benefit lies Nature of covenant 1. Positive covenant Requires covenanter to do something in relation to the land 2. Negative covenant Requires covenantor not to do something in relation to the land 3. Restrictive covenant Restriction placed on user of the land - Not to use for certain purpose & only specifics one May be given in a stand alone transaction by one neighbour to another Arises when a person sell part of their land to another or many other - Give or given covenant along with it **An important source of private planning** - Disallow a certain act to be done on the land by the owner to preserve the enjoyment of a property - Preserve the character of a neighbourhood by preventing activity contrary to the status quo - Limit the impact of development \^ imp for large scale development s where covenants together with easements can be used for the benefit of all future purchasers of land within the development. **As contract** - Promises made by deed by one person to another Not to do something on own land - Binding and enforceable as matter of contract law - Irrespective of the presence or absence of consideration **Restrictive Covenant as an estate (interest in land)** **Tulk v Moxhay** **Whether the restrictive covenant was enforceable against the Defendant, despite it not being in his deed.** - the court treated the restrictive covenant not only as a contract but also as an interest in land appurtenant - to the land owned by the covenantee, the person having the benefit of the restrictive covenant originally, - which burdens or encumbers the title to the land owned by the covenantor, the person who originally gave the undertaking under the covenant. Hence, restrictive covenants are now treated as proprietary interest in land, albeit equitable in nature. **Characteristic of Restrictive Covenants** 1. **Must be restrictive** whether a covenant is positive or negative in nature, the courts will examine the substance - Where the obligation of the covenant can be satisfied by doing nothing, - i.e. no expenditure and inaction is required of the covenantee, = negative. E.g -- having open space X build fence Even if framed in a positive way, it may be re worded in a negative manner and hence treated as being negative. 2. **At the date of the covenant, the covenantee owned land that was benefitted by the covenant** There must be a dominant tenement & a servient tenement - the restrictive covenant must benefit the dominant tenement. **3 ways to show land is benefitted** 1. **Annexation** 2. **Assignment** where there is an express assignment of the covenant by conveyance of land to the next owner. 3. **A scheme of development** where both owners derive title from a common vendor who laid out the development in lots subject to the covenant - with the intention that the benefit and burden are imposed on all purchasers and both owners have bought their properties - on the basis that the restrictive covenant will benefit other lots. 3. **The original parties intended the burden to run with the land to bind successors** Either expressly or by implication in the document creating the document - Restrictive covenant must touch & concern land - Must relate to the use and value of the land 4. **Covenantor must take with notice of the covenant** **If recorded at land registry** - **any successor is deemed to have constructive knowledge of the restrictive covenant are bound by it.** **If not recorded** - **a need to establish on facts that notice of the restrictive covenant came from the contract or being told.** Enforcement of restrictive covenant Land is bought and sold frequently , this raises questions as to whether the **original** and **new owners** of the land are **bound by** the promises made by the **original owners.** There are four situations where this may happen: A diagram of a situation Description automatically generated **POINT 1** A covenant (positive or negative) is **equivalent to a legally binding** contract between the covenantor and covenantee. - The covenantee may sue the covenantor for breach of contract for damages or obtain one of the equitable remedies of injunction or specific performance. - Upon sale and purchase of the land of the covenantor and covenantee, the benefits and burdens of covenants are passed on to subsequent purchasers. **A number of different situations may be identified.** i. Both parties, the original covenantor and original covenantee, are still in possession of their respective lands. ii. After the original covenantor has parted with the land, he remains liable on all the covenants to parties having the benefit of the covenant arising from the contractual nature of the covenant. iii. After the original covenantee has parted with the land, he may still be able to enforce a covenant against the party who has the burden of the covenant. - It is not possible for the burden of the covenant to run with the land to successor-in-title at common law in any circumstances. - However, it is possible for the burden of some (but not all) covenants to run with the land to successor-in-title in equity. In equity, only the burden of restrictive covenants are capable of passing to successor-in-title. - Suppose the original covenantor being owner of plot X has made a covenant with the owner of plot Y (the original covenantee) not to carry on a trade or business and another covenant to maintain a fence. If plot X is then sold to the third party, the new owner could be liable on the covenant restricting use of the land but cannot be liable on the covenant to maintain the fence. The conditions for the passing of the burden of restrictive covenants; i. The covenant must be restrictive or negative in nature. It is a question of substance, not of form, and it is irrelevant how the covenant is actually worded. \- A covenant is negative if it prevents the landowner from doing something on his own land. A covenant which compels the owner of land to spend money on his property will be regarded as positive. ii. The covenant must touch and concern land. Only a covenant that relates to the use or value of the land should be capable of passing to the successor-in-title with a transfer of it. iii. The covenant must have been imposed to benefit land of the original covenantee. This means that the burden can pass to the successor-in-title only if the covenantee had land at the time the covenant was made - the convenantee's land was capable of benefitting from the covenant and that the burden was imposed in order to benefit the covenantee's land. iv. The burden of the restrictive covenant must be intended to run with the land. - The benefit of both positive and negative covenant may pass at law and in equity. separate conditions under the common law and equity for this to happen. **Passing the benefit of positive and negative covenants at common law will be relevant** - the claimant, the successor-in-title to the original covenantee is claiming the benefit of covenants in order to sue the original covenantor. i. The covenant must "touch and concern" the land of the original covenantee. ii. The claimant must have a legal estate in the benefitted land. iii. The benefit of the covenant must have been annexed to a legal estate in the benefitted land, either expressly or impliedly. iv. As an alternative to annexation, it is possible for the benefit of a covenant at law, the right to sue to be assigned expressly to another person. **Position in Equity** - Passing of the benefit of covenants in equity is applicable to both positive and negative covenants - the burden of a positive covenant cannot run with the land to a successor-in-title, the principles are developed based on the context of a restrictive covenant. Conditions to be satisfied in order to establish that the benefit of the covenant has passed in equity. i. The covenant must "touch and concern" the land of the original covenantee. The covenant must relate to use and value of the land and not merely personal in nature. ii. The claimant must have a legal or equitable estate in the land of the original covenantee. The claimant may not have the same legal estate as the original covenantee but will succeed if the claimant has a legal interest in the land. iii. 3 ways benefit of the covenant must been transmitted to the claimant: **[Annexation - express or statutory. ]** - The benefit of the covenant must have been annexed to a legal estate in the benefitted land, either expressly or impliedly. This means that there are words which make it clear that the covenant is for benefit of certain land, or by words which make it clear that the covenant is intended to endure for successive owners of the land. **[Assignment -- express or implied. ]** - As an alternative to annexation, the claimant rely on the general rule that the benefit of a contract may be assigned expressly to another person. possible for the original covenantee to expressly assign the benefit of a covenant at the same time as he transfers the land. **[A scheme of development ]** - The benefit of a covenant pass where there is a building scheme or other scheme of development - where it appears that the developer and the original purchasers of all the plots intended that each plot owner be able to sue every other plot owner for a breach. Acquisition of Restrictive Covenant - A restrictive covenant may be created by a contract in the original transfer of land ownership from the seller and buyer. - A restrictive covenant may be created by a building scheme where the owners of the dominant and servient tenement bought their properties from one common vendor. - A restrictive covenant may be expressly assigned by conveyance of the passing of the restrictive covenant when the ownership of the lands either benefitted or burdened have been changed. **Removal and Variation of Restrictive** The court has power to order wholly or partially to discharge or modify any restrictive covenant if they are satisfied that - the character of the property or the neighbourhood or other circumstances such that the restriction ought to be deemed obsolete - the continued existence of the restrictive covenant would impede the reasonable user of the land without securing the practical benefits to other persons - proposed change or modification will not substantially injure the persons entitled to the benefit of the restrictive covenant A restrictive covenant shall cease to be enforceable against assigns of the burdened land at the expiry of 20 years from the date of entry of a notification thereof on the land-register. **Remedies** Where the owner of the benefitted land is not able to fully enjoy the benefit of the restrictive covenant due to the actions of the owner of the burdened land, seek remedies. i. **Abatement** ii. **Damages** iii. **Injunction** iv. **Specific Performance** Where the covenant is positive in nature, an order of the court may be obtained to order the owner of the burdened land to do what he has promised to do.