Property Law- Co-ownership

A co-ownership in land occurs when two or more persons hold an interest

in the land. There are two main types of co-ownership these are joint
tenancy and tenants in common.
For a situation of joint tenancy to exist, each 'tenant' must have an identical
interest in the whole land and every part of it. The interest of each person is
the same in extent, nature and duration. This essentially means that none
holds any part to the exclusion of the others. At common law the interest of
each must vest at the same time. The main feature of joint tenancy is
embedded in the doctrine of the four unities; these are the unities of title,
interest, possession and time. Firstly, the Unity of Interest: this means that
the co-owners must each have the same interest in the land. So for
example, if there is a conveyance to A of three quarters of the equitable
interest and one quarter to B, in fee simple, they have the same interest in
the land (although not the same size of share) unity of interest in present.
Unity of Title: for this to be present, all of the co-owners must receive their
interest in land under the same document. Thus, if a condition under the
title applies to one person and not to the others there is no unity of title.
Unity of Time: each co-owner's title must vest at the same time and so
since A and B received their share under the same conveyance in fee
simple, this unity is present. However, if the property was left to them 'on
attaining the age of 40' and they are different ages and so will attain the
age of 40 at different times, no unity of time would be present. Unity of
Possession: this means that all parties must be entitled to possession of
the whole of the land, and may not exclude each other as co-owners.
Where any of the four unities are missing the joint tenancy is ineffective
and the matter will be treated as a tenancy in common in equal shares.
The main effect of joint tenancy can be found in the Latin maxim jus
acrisendi or the right of survivorship; this essentially means that if any one
of the tenants dies his interest will automatically vest in the other joint
tenants. As the parties do not have an individual interest he cannot leave
his interest in the property to any of his family members in his will.
On the other hand a tenancy in common only requires the unity of
possession; this means that all the tenants have the right to possess the
land; the other three unities need not be satisfied thus the tenants can
obtain his interest at a different time from anyone else, he can have a
different interest from everyone else and does not have to receive his
interest the same way as everyone else that is, from the same document.
Unlike joint tenancy each tenant holds an individual share in the land even
though the land may not have been physically divided up.
Severance of the joint tenancy
A joint tenancy may be converted to a tenancy in common by the act of
severance this may be done because the parties may wish to leave their
interest in a will or that they want to hold individual interest, this may occur
by any of the following means:
Firstly, severance by notice under Section 36(2) Law of Property Act 1925,
the acts requires notice in writing sent by one joint tenant to all the other
joint tenants stating that he wishes to hold his interest as a tenant in
common. This should be delivered to the last known address of the other
joint tenants and need not be signed. This section was applied in the case
of Harris v Goddard, where Mrs. H filed a petition to divorce her husband
(H). It contained a paragraph asking the court to make an order concerning
the ownership of the property. H died three days before the hearing and
the question was whether the petition severed the joint tenancy. It was held
that the relevant paragraph in the petition was not drafted in such a way as
to satisfy s. 36(2) which required the joint tenant to express an intention for
the severance to occur immediately not at some time in the future.

Secondly, severance by an act of one tenant operating on his own share:
each co-owner is at liberty to dispose of his own interest in such a manner
as to sever it from the joint tenancy. An act such as the sale or gift of the
equitable interest would amount to such an act. However section 53 (1) of
the LPA which requires that sale or disposition of the equitable interest
must be in writing and signed by the person selling or disposing that
interest.
Thirdly,severance by mutual agreement by all of the parties. A course of
dealing by the joint tenants showing that their interests should be treated as
a tenancy in common rather than a joint tenancy: any course of dealing is
sufficient to intimate that the interests of all were mutually treated as
constituting a tenancy in common: the case on point is that of Burgess v
Rawnsley in this case Mr. Honick and Mrs. Rawnsley were joint tenants,
they bought the house thinking that they would both live there. She did not
move in and they agreed orally that she would sell her share for $750 but
then she changed her mind and wanted more. Mr. Honick died, the house
was sold and his administratrix, Mrs Burgess, wanted to establish
severance to get half the sale proceeds. Lord Denning held that there was
a sufficient common intention for severance at 750. The subsequent
repudiation made no difference.
Severance may also occur through the mutual conduct of the joint tenants,
there is no hard and fast rule as to what amounts to mutual conduct, the
circumstances of the situation must be considered. For example where the
joint tenants for a long time have behaved as tenants in common with
individual interest as seen in the case of Barton v Morris where a man and
woman, who were unmarried but who lived together, purchased a farm
which they held as joint tenants. They lived at the property and carried on
a partnership, without a written partnership agreement. The woman died in
an accident. The question was whether the farm had become a
partnership property (severing the joint tenancy) or whether the partner
became solely entitled by survivorship. The High Court held that even
though the farm was shown as a partnership asset in draft accounts, it had
not been made partnership property, proceeds from business in separate
names was done for a business reason and not a conduct to sever.
Additionally mutual will may be set up by the joint tenants, the effect of a
mutual will is to deny the right of survivorship and is severance both by
mutual agreement and by mutual conduct.
Finally, severance by homicide in the case of a joint-tenancy where one
joint-tenant kills, equity intervenes to sever the homicidal joint-tenant's
interest thus making him a tenant in common. This is so that the wrongdoer
could not profit by from survivorship he cannot kill a joint tenant and then
get the property through survivorship.
Under Jamaican law however it appears that only a registered transfer will
effect severance. Two cases to be considered are Gamble v Hankle and
Lawrence v Mahfood in both cases the courts considered what would
effect severance. In Lawrence the transfer was not registered even though
it was signed the court was of the view that none of the effective methods
of severance was present. Unlike English law that which considered that a
signed transfer will effect severance Jamaica law does not based on
Lawrence it appears that nothing short of a registered transfer will suffice.
In Gamble on the other hand, the court was of the view that an inter vivos
deed of gift transfer was considered to be sufficient.
It must also be noted that where a joint tenancy is severed, it does not
necessarily follow that all co-owners now hold as tenants in common. If
there are just two coowners, the result is that when the tenancy is severed,
they are both now tenants in common as one cannot be a joint tenant all by
himself. But let's say there are four people - Bill, Ben, Jackie and John hold
a property as joint tenants. Jackie gives her share of the property to Bill.
Now Bill has a dual ownership status. 75% of the property is held by Bill,
Ben and John as beneficial joint tenants and 25% is held by Bill as tenant
in common.

Note that equity presumes a tenancy in common in several situations:
partnership/business property, as above, and also where more than one
person lends money to a borrower (the relationship between the lenders is
tenants in common) and where unequal contributions have been made to
the purchase price. These presumptions can be rebutted.











Landlord and Tenant- License and Leases
A License may be defined as a permission to do some act which would
otherwise be unlawful in regard to land belonging to another person. It
prevents what would otherwise be the tort of trespass. A license lacks the
quality of interest in land as it is not transferable and cannot be enforced
against third parties. There are two main types of license these are bare
license and contractual license. A bare license is when one party gives
another the permission to do something on his land and there is no
consideration or payment between the parties. A postman delivering letters
is taking to have a bare license to enter the property. In revoking a bare
license a person must be given reasonable amount of time to leave if the
person does not leave within this time he then becomes a trespasser. The
license is revoked when the person who granted it dies. A contractual
license on the other hand arises when value or consideration is given for
the license, example paying for a ticket at the movies or paying to stay at a
hotel. A person who occupies land but cannot satisfy the requirements for a
lease would be considered to have a contractual license at common law a
contractual license can be revoked at anytime this was seen in the case of
Wood v. Leadbitter It was held that the plaintiff who had entered the close
of the defendant's master after the purchase of a proper ticket could be
forcibly asked to leave, notice having been first given that 'he should leave.
Under a contractual license it is possible to assign rights to a third party
however; this cannot be done if the contract expressly prohibits it and if the
contract is of a personal nature it cannot be assigned. Traditionally
contractual licenses were not seen as proprietary interest however in
Errington v Errington and woos Denning claimed that a contract license
was a proprietary interest in land and so could bind a third party. However
in Anstalt v Arnold it was held that Dennings decision was per incuriam
therefore it could not bind third parties.
A Lease may be defined as an estate in land for a specified period of time it
is capable of being a legal estate under LPA. There are three main
elements that must exist in order for there to be a lease these are exclusive
possession, certainty of duration and rent or consideration. Therefore no
lease would be created if there was no intention to create legal relations, if
there is an act of generosity or friendship, if there is a service occupancy or
lodger. A lease is distinct from a tenancy, a lease is usually used to set a
fixed of over one year while a tenancy is usually one year or less.
As previously mentioned one of the main features of a lease is exclusive
possession this means that you have the right to exclude others from
coming onto the property during the duration of the lease including the
person whom the land was leased from.