There are two ways of owning a property, through joint tenancy or tenancy in common. A joint tenancy is where the co-owners are members of the same family, they are regarded as a unit, whereby each co-owner is entitled to the whole of the property as per Lord Nicholas . There are two distinguishing features of a joint tenancy, one is that there is right of survivorship, where the one who lives the longest keeps the outright ownership of the property, and if one of the trustees were to die, the rights of the property would be divided amongst the other trustees. This means that succession laws don’t apply so a trustee can’t leave their share to another individual. The second feature is the presence of the four unities between the co-owner; the first is unity of possession which requires that all the people have a right to enjoy the whole of the relevant property. Next is the unity of interest, whereby all tenants have the same interest in the property and it must be consistent, e.g: freehold or a leasehold. Subsequently, the unity of title is needed which means that the title granted to the parties has to be in the same document and all of them must be named together. Lastly, the unity of time requires that the interest of each party arises at the same time. On the contrary, a tenancy in common is where each individual has a distinct, separately transferable interest, whereby undivided share can be alienated. The unity of possession is the only unity required and the others can be absent. Under a tenancy in common, there is no right of survivorship but succession laws apply allowing each individual to pass their interest. The laws of succession apply as normal on death of the tenant, but where the tenant is alive then it must be documented in writing that they wish to transfer their interest.
Firstly, to determine the type of co-ownership, one must consider the first test which is to question if all the four unities are present, if all the four unities are present then it is open to debate if this can form a joint tenancy or a tenancy in common. Thus in this scenario, it is clear that the unity of possession is present as all the five children have the right to enjoy the whole of the property because the father named all of his children without indicating any shares. The unity of interest is present as each co-owner has the same estate and they have an equal right to enjoy the land. Next there is unity of time because all the five children were mentioned together at one time and lastly there is unity of title as the title granted to the parties is in the same document. Subsequently, one must look at whether there is “an express declaration of how co-owners should hold the equitable interest” , presently the father failed to expressly state the nature of the co-ownership, whether it’s to be held as joint tenants or as a tenancy at common in terms of equity. Therefore, in the absence of an overt document, the court will look for whether an intention is apparent if a tenancy in common was intended. In order to do this, the court will look for words of severance, which means they will look if the words used in conveyancing suggest there is a distinction of shares. For example, if words like equal or a percentage are used then it will be held that it is a tenancy in common. In the present case, there is no presence of words of severance which indicates that so far it is intended to be a joint tenancy at equity as well but to ascertain this, one must now look at the “nature of the relationship” as indicated by Lady Hale and whether equity presumes a tenancy in common. There are three scenarios when the court will presume a tenancy in common, one being where the relationship is business in nature as in Lasker , second where lenders and borrowers are concerned; and lastly where the co-owners have funded different amounts towards the acquisition price. On the basis of this, it can be argued that the relationship was a matrimonial one, whereby one can infer the father must have wanted to give this property to his children as a unit not as having distinguishing or unequal shares. Consequently, it can be concluded that at equity Chris, Amy, Eric, Diana and Bill are joint tenants. As a result of which, succession laws don’t apply, therefore Freda wouldn’t have an equitable interest. The fact that Bill has died means that his equitable interest is divided amongst the remaining trustees under right of survivorship.
The next argument is whether George has an equitable interest in the property, and if his contributions are sufficient to amount to an interest in the property. It is clear that George doesn’t fall within the resulting trust requirement as it requires the individual to contribute to the purchase price of the property prior to acquisition, which George hasn’t. The next possibility is whether if he has an interest under implied constructive trust, George would only satisfy this trust requirement if he provided money or done something substantial after the purchase of the property. The House of Lords in Rosset laid out two requirements for constructive trusts, one that there must be common intention that the claimant should acquire a share in the property, and second that the claimant relied on that intention to their detriment. The fact he paid bills is insufficient as only financial contribution such as mortgage instalments will suffice as held in Burns . Additionally, in Rosset, it was ruled that Mrs Rosset ‘s work of decorating the house wasn’t “substantial enough” for her to acquire an interest in the property. By using this ruling as guidance, one can argue that George landscaping the garden isn’t substantial enough work because landscaping is a comparatively easier and cheaper form of work, whereas had he done more labour intensified work like to demolish “a shed and put up a new shed,” then it may have been arguable that he had done enough to have an interest. Furthermore, one can agree with Lord Diplock to a large extent when he commented that decorating and making improvements is “common” now and that it would be surprising to believe that the individuals would have thought that such domestic activities would impact “the existing proprietary rights.”9 One can endorse this view wholly because of the changing societal norms whereby there is growing equal distribution of household work, thus arguing that household repairs within the home would change the equitable interests of individuals seems irrational. Therefore, one can argue that George doesn’t have an equitable interest in the property, one because there is no clear evidence to demonstrate that there is common intention, and second as no indication of detrimental reliance. He could have highlighted that he acted to his detriment if he had sold his previous accommodation for this property for instance, but there is no evidence to suggest anything such. Therefore, he doesn’t satisfy the second requirement.
Additionally, Eric must consider the possible disputes which may arise due to the sale of property. Under TOLATA, section 14 allows the court to intervene and take upon the role of the trustee to solve the dispute or declare the nature or extent of a person’s interest in the property subject to the trust, as they deem fit . Moreover, section 15 outlines criteria that can be used by the court in deciding if a sale application is successful. The court is to consider the intentions of the party, the purpose for the purchase of property and so forth. In the current scenario, Eric must consider if any of the co-owners have any children under the age of 18, then a dispute may arise because under TOLATA, there is an express factor for the court to look at the welfare of the child . For instance, in Williams , the sale was postponed as the youngest child was 12 and due to lack of alternative accommodation not being available. Similarly, where the property is required to provide accommodation for the duration of the lives of the co-owners or that of the survivors the sale may be postponed, as in Chun . In application of this scenario, if Eric demands sale and the other tenants argue that they don’t have alternative accommodation or that the proceeds of the sale may be insufficient to allow them to purchase another property, then its arguable that the court may refuse sale or postpone sale until a later date. Thus, it’s advisable that Eric takes into consideration the circumstances of the co-owners before making an application to the court. It is clear from the cases above that TOLATA allows great flexibility to the court and they decide on facts of each case,