PLAGARISM FREE ANSWERS

Question 2

‘Not only is it difficult to know whether a joint tenancy or tenancy in common has been created
when land is acquired by co-owners, but it is also often unclear whether severance has
subsequently occurred. In fact, it would only improve the legal position if it was possible for there
to be only one form of co-ownership.’

Discuss.

General remarks

The contentions in the quotation ask for a discussion of the following: what difficulty there is in
determining which of the two available forms of co-ownership exists where land is held by co-owners; the
methods by which a beneficial joint tenancy may be severed; and the case for abolition of the joint
tenancy in equity. All this is introduced in Chapter 5 of the module guide.

Law cases, reports and other references the examiners would expect you to use

Goodman v Gallant; Pankhania v Chandegra; Stack v Dowden; Lake v Gibson; Re Fuller's Contract;
Lake v Craddock; Malayan Credit Ltd v Jack Chia; Gould v Kemp; Williams v Hensman; Burgess v
Rawnsley; Neilson-Jones v Fedden; Hawkesley v May; Re Draper's Conveyance; Harris v Goddard;
Kinch v Bullard; Re 88 Berkeley Road; Fantini v Scrutton; Quigley v Masterson; Davis v Smith; Gore and
Snell v
4

Carpenter; Hunter v Babbage; Carr v Isard; Re K; ss.1(6), 34, 36 and 196(3) and (4) of the LPA 1925 and
s.34 Trustee Act 1925.

Common errors

There were a number of common errors. They included writing generally about the forms of co-ownership
(including description and discussion of the four unities) and severance. This ignores the terms of the
question and, as far as co-ownership goes, it looks at the wrong issue. This part of the quotation is really
asking about difficulties in establishing which form exists when co-owned land is acquired. In addition,
relatively few candidates addressed the thrust of the quotation’s final sentence, which calls for arguments
about whether the law would be improved by having only one form of co-ownership in equity.

A good answer to this question would…

find a coherent structure to respond to each of the claims the quotation makes – perhaps taking each of
the three claims (absence of clarity about which form of beneficial co-ownership applies, severance and
reform) in turn. Throughout, good answers should use relevant legal information to build arguments.
These may agree or disagree with the quotation or do a mixture of both. What matters is that the essay
engages with the question. There are many ways of doing this. Why does the law mandate that a legal
estate has to be held by co-owners as a joint tenancy? Would the law be improved if that was changed?
Typically, any uncertainty about whether the beneficial estate is held as a joint tenancy or a tenancy in
common occurs where the parties have not expressly identified their preference as they should have
done as part of the purchase process. Is the approach embodied in the traditional presumptions (as
affected by Stack) difficult or unclear? Good answers should also be able to find ample to say about
whether there is clarity about when severance may or may not have occurred. This might explore the
accumulated wealth of case law around ss.36 and 196 of the LPA and the methods laid down in Williams
v Hensman. A good answer might: assess the operation of unilateral severance by written notice; the
diverging judicial opinions in Burgess about the ambit of mutual agreement and course of dealing; the
inability to sever by will; and the difficulties flowing from English law’s apparent preference to rely on
severance in cases of unlawful killing of another joint tenant. The final sentence in the question opens the
way for arguments about improving co-ownership by abolishing the joint tenancy. This may focus the
discussion on the importance of choice, the value of survivorship and the attractiveness of rendering the
complexities of severance redundant. Here (and elsewhere) good answers can show depth of knowledge
from wider reading.

Poor answers to this question…

showed very little knowledge or understanding of the subject matter referred to in the quotation, or
sometimes dealt only with co-ownership or severance. Some answers strayed into irrelevancy, writing
about such things as the four unities, constructive/resulting trusts or the statutory framework for trusts of
land provided by TLATA 1996.

‘Although the joint tenancy in equity should not be abolished, the methods by which a joint
tenancy can be converted into a tenancy in common would benefit from being simplified and
streamlined.’

Discuss.
Co-ownership can be created or maintained explicitly via the application of a
formal written contract or implicitly by the application constructive trust or
resulting principles. Tenancy in common and joint tenancy constitute both different
kinds of co-ownership.

As of 1925, solely joint tenancies have been allowed under the statutes (section
1(6) LPA1925). Nevertheless, equity still admits as co-owners could be tenants in
common or joint tenants. Until 1997, the LPA 1925's sections 34 or 36 developed
a legal trust of sale for any asset that had been explicitly transferred to more than
one individual.The property has been placed under trust of equitable owners that
could become joint tenants or tenants in common according to Schedule 2 TLTLA
1996 by legitimate proprietors that are designated as joint tenants. The highest
possible number of trustees is four, according to section 34(2) of the Trustee Act of
1925.

Both joint tenants and tenants in common are illustrations for equitable
owners.Everybody has an equal tenancy is granted entry the entire land; nobody
owns a stakes as far as joint tenancy is concerned. Every tenant-in-common
ownership of property is given an identified "undivided share" which they or can
dispose of, move, give away through will, etc. The existence of any of these, unity
of possession, unity of interest, unity of title, and unity of time, that indicates a
joint tenancy of equity, indicates if there is an equitable joint tenancy or tenants in
common.

Because of respective disparate donations, each of them is automatically expected

to own as tenants in common under equity. Yet in Goodman v. Gallant, the
structure of co-ownership is determined by the wording of the transfer.
The jury will deduce a joint tenancy under equity despite the fact here
may have been inconsistent investments, according to HL in Stack v.
Dowden, if the legal ownership of a home is passed into jointly held
names. The concept of the Right of survival theory is applicable if both
parties are equitable owners.

The surviving joint tenants will receive the ownership interest held by a
deceased equitable joint tenant per the right of survivability concept
(Dunbar v. Plant). (Gould v. Kemp) "Right of Survivorship" takes priority
over any attempted transfer by will. However, severance can get
around the Right of Survivorship. Severance is a process that turns a
joint tenancy into a tenancy in common. Different processes lead to
severance.

Severance could arise after a sale. In Williams v. Hensman, it turned out

that "the conduct performed by any of the people concerned acting on
their individual part" could potentially be utilized for ending a joint
tenancy.Since the sale had the consequence of eliminating any
one unities, this will bring an end the joint tenancy.One further method
of terminating equitable joint tenancy is insolvency.

Another method severance is homicide. A joint tenant assassinations a

second joint tenant through committing a murder under (Re K),
however he is not permitted to gain anything off the act he committed,
consequently succession is not possible.It is the most common way to
breaking joint tenancy, notice per section 36 of the LPA.
Both spouses were legally co-tenants of their marital home under the
case of (Kinch v. Bullard). To dissolve the joint tenancy, the spouse gave
written notice of her intent. The spouse burned the letter after altering
her thoughts, and her husband didn't get a chance to peruse it.
Notification must be given to every one of the current joint tenants. It
turned out that the notification was properly provided successfully and
the spouse's estate had the right to its part. The notification
additionally has to indicate that both parties desire to dissolve their
relationship instantly as opposed to on some future point (Harris v.
Goddard).

The joint tenants must consent to allow for severance to take place. In
(Rawnsley v. Burgress), it was decided this, regardless of the reality the
the verbal contract could not become legally valid, a single joint
tenant's acquiring of a different joint tenant's portion led to a
severance. The CoA pointed out that the aforementioned the need is
only relevant if it indicates a joint tenancy could have been cut off
through alienation by an individual joint tenant in favor of a different
party and is not relevant to severance from agreements among joint
tenants. A agreement has to be particularly effective for there to be
treated as considered severance within (William Hensman).

As a result, the Law Commission's report (1985) intended two drastic

changes regarding the severance clause: first of all, restricting
severance within an official manner of written notification; and second,
authorizing severance through will. The new system on severance,
nevertheless, has not yet taken effect.The TLTLA clarified all confusion
for the essence of co-ownership rights. Equitable owners weren't
granted the power to inhabit the property throughout the past. Due to
the implementation of both the legislative contract to sale plus the rule
of converting before 1997, the fair owner's only entitlement were to
get the earnings in a sale.

At precedent-based regulation, severance should be done legitimately

to be enforceable. This is so that joint tenancy, which the precedent-
based regulation leaned toward, wouldn't be easy to end. The other
joint occupants' endorsement is currently fundamental as indicated by
Area 30(1) of the LCLRA 2009. Nonetheless, severance has been
allowed in light of the fact that people want to switch over completely
to occupancies in like manner so they might pass on their part to their
family, and the law presently recognizes that monumental superfluous
cut off points on estrangement is unwanted. The regulation gave a co-
inhabitant the option to modify the tenure's terms without the assent
of the other joint occupants singularly.

This position was adjusted by LCLRA 2009 Area 30. If a joint occupant
has any desire to sell their advantage in a property, they should now
get the other occupants' earlier composed endorsement. This
statement, as Woods would like to think, offers weak co-proprietors
security. Her viewpoint is that it is better for co-proprietors to agree to
any changes to their co-possession structure. A joint inhabitant may
likewise apply to the court under S.31 of the demonstration in the
event that assent is overall preposterously kept, and the court might
shed assent. For severance through the procurement of an extra stake,
earlier composed endorsement is currently required under Area 30 of
the LCLRA 2009..

One could say that tenancy in common has been recognized by the
rules of law. By Stack v. Dowden, it was ruled that tenancy in common
remains possible regardless of a claim that the parties are tenants in
common with legal ownership. It is precise, yet it fails to include
instances when both sides have made it clear that they both possess
beneficial rights like joint tenants yet afterwards opt for split. This is
claimed that one especially helpful legal change might be to eliminate
advantageous joint tenancies.
Question 8

‘The concepts of joint tenancy and tenancy in common are convoluted and

obscure. By contrast, the Trusts of Land and Appointment of Trustees Act

1996 has introduced important new ways of protecting the rights of

beneficiaries to land which reach beyond the limits of the case law.’

Discuss.

General remarks

The general remarks in the Introduction to this report apply to essays on this topic:

especially those under headings A1, A2, A3 and C. Candidates tended merely to

write out all the law they could remember without any attempt to address the
question which they were asked to discuss.

Candidates were expected to consider whether the case law concepts were better

or worse than the statutory code under the 1996 Act. That should involve evaluation

of the strengths and weaknesses of each system. Instead, students merely wrote

out their notes. In many cases, those notes were written in an unstructured format,

which seemed to be a mere ‘stream of consciousness’, without any organisation or

a thesis.

Law cases, reports and other references the examiners would expect you to use

Trusts of Land and Appointment of Trustees Act 1996, ss.2, 14 and 15; Jones v

Kernott; Re Citro; Re Holliday.

Common errors

Common errors included a failure to identify an argument at the outset and to

pursue that argument throughout the essay. Instead, most students simply wrote

out their notes on the difference between joint tenancy and tenants in common, the

process of severance and the rights created under the 1996 Act.

A good answer to this question would…

would exhibit the good features of an essay set out in the Introduction to this report.

Poor answers to this question…

failed to address the question asked and failed to be precise in their discussions of

the legal concepts. They also failed to explore the issues discussed in the case law

in detail.

Student extract

The law of co-ownership is complex. The Trusts of Land Act 1996 organised

the law dealing with trusts on land. The Act was to give beneficiaries the right

to live in the house held on trust. The purpose was to give them rights.

The concept of joint tenancy arises in four circumstances: (i) unity of time, (ii)
unity of title, (iii) unity of possession, (iv) unity of the same interest in the

property. The claimant must show that he have all four of these requirements.

The joint tenants have right of survivorship. This means that the last living

partner owns the whole property. Each partner has no separate right but they

have rights together under joint tenancy. Tenancy in common is where the

partners have separate rights.

Comments on extract

This opening to the essay does not address the question which has been asked.

This essay does not establish a thesis (or argument) at the outset. It is important

that the essay should do this. Instead, the candidate simply wrote out all of the

information s/he could remember – perfectly accurately – in relation to the law in

this area. The mark could not exceed a 2:2 as a result.