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co-ownership by Mind Map: co-ownership

1. tenancy in common

1.1. tenants hold an undivided share

1.2. only unity that needs to be present is possession

1.3. no right of survivorship

1.3.1. interest will be distributed by tenant's will

2. joint tenancy

2.1. four unities

2.1.1. possession

2.1.2. interest

2.1.3. title

2.1.4. time

2.2. right of survivorship

2.2.1. presumption of survivorship: conveyancing act 1919 NSW s 35

3. creation

3.1. law

3.1.1. CA s 26 statue presumes tenants in common: CA s 26(1) instrument creating co-ownership expressly states that persons are to take as JT will create a JT: CA 1919 s 26(2) s 26 applies to both law and equity Delehunt v Carmody (1986) 161 CLR 464

3.2. equity

3.2.1. follow the law unless co-owners contribute unequal amounts to the purchase price co-owners advance money on a mortgage property acquired by partnership or joint business venture if any of these apply, then equity will presume tenants in common

4. severance

4.1. ends a JT by converting it into a TiC

4.2. occurs when one of 4 unities are destroyed

4.3. right of survivorship also destroyed (but only to the tenant that is severing; everyone else is still a JT)

4.4. other co-owners cannot prevent a severance

4.5. can be effected in 6 ways

4.5.1. unilateral act by one JT transfer to 3rd party effective at law when legal interest is transferred gift to a 3rd party equity does not assist volunteers transfer to self: McCoy v Caelli [2008] NSWSC 986 a JT can register a transfer to themselves to sever a JT: s 97 RPA don't need CT notice MUST be given to other tenants BEFORE registration no registration = no severance (both in law and equity) will severance occur if a JT creates a mortgage? will severance occur if JT grants a lease? declaration of a trust is only effective is it complies with s 23C(1)(b) CA

4.5.2. mutual agreement by JTs all JTs must agree to hold as TiC Lysaght v Edwards (1876) 2 Ch D 499 agreement needs to be in writing: s 53A CA;Lyons v Lyons [1967] VR 169: oral agreement may also be sufficient: Burgess v Rawnsley [1975] Ch 429

4.5.3. course of dealing by JTs must be conduct by all JTs discussion on how to severe is not sufficient: Magill v Magill (1997) must show conduct that all co-owners agreed and assumed that each held an undivided proportionate share AND no right of survivorship: Williams v Hendsman (1861)

4.5.4. court order court order can effect a severance s 66G CA

4.5.5. unlawful killing cannot profit from one's crime; if one JT murders another JT, they hold on trust for victim's heirs forfeiture rule

4.5.6. bankruptcy will severe a JT at law in equity

5. ending a co-ownership

5.1. by action of the parties

5.1.1. TiC: when one co-owner acquires the shares of the others

5.1.2. JT: when one co-owner is the remaining after the death of other JTs

5.1.3. when all co-owners transfer their interest to a third party

5.1.4. by partition - dividing property to physically reflect their shares

5.2. by order of sale or partition by the court: Segal v Barel (2013) 84 NSWLR 193

5.2.1. one or more co-owners may apply to the court to hold property in statutory trust for sale or partition: s 66G CA sale is primary remedy partition allowed only in special circumstances: Re Cordingley (1948) 48 SR (NSW) 248

6. rights between co-owners

6.1. right to possess/occupy the property

6.1.1. all co-owners are entitled to possess the whole property thrift v thrift (1975) 10 ALR 332

6.1.2. co-owner occupying property not liable to pay occupation fee to other co-owners not in occupation: Forgeard v Shanahan (1994) 35 NSWLR 206 exceptions include if agreed otherwise if one co-owner ousts another to off-set a claim for improvements

6.2. right to reimburse for money spent on repairing or improving the property

6.2.1. common law no claim on recovering costs from other co-owners Leigh v Dickeson (1884)

6.2.2. equity can claim improvements but not for maintenance Squire v Rogers 1979; Ryan v Dries 2002; Forgeard v Shanahan 1994 can claim lessor of cost from improvements OR increase in value of property (whichever is the lessor sum)

6.3. rights to collect rent

6.3.1. equity sees one acting as an agent for other co-owners and liable to account for rent received Forgeard v Shannahan 1994; Hutchins v Hutchins; Ryan v Dries 2002

6.4. right to other income/profit from the property

6.4.1. Ryan v Dries (2002) equity will look at the total cost of the purchase to determine relative interests

6.4.2. Squire v Rogers