LAND LAW CO-OWNERSHIP

Writing law answers in the IRAC method can be a harrowing act, especially if you do not understand the framework. To begin with, the IRAC method is a framework to organise your essay question, with the basic structure being: Issue, Rule, Analysis and Conclusion.[1] You can only write a complete answer by following this simple framework. The IRAC method ensures that you follow the necessary steps to cover all bases and is paramount in organising your answer. Here is a guide to the process. Also have a look at our law books that cover all the material using the IRAC Method. We hope you find the below Land law Q&A using IRAC Method in Land law co-ownership.

USING THE IRAC METHOD IN LAW

ISSUE – Stating the issue is paramount and will form the base of the analysis and assist in identifying the facts to the problem. It is best if the issue is stated in the form of a question rather than the general form. Additionally, it is recommended to mention the parties’ names and specific facts such that the issue is to encompass all cases present in a similar question.

RULE – Also referred to as the relevant law. Generally, under this section, we describe the law which applies to the issue. When articulating the rule, you ought to state it as a general principle, provide enough context and analyse the facts.[2] Attributing legal facts relating to the issue is paramount; failure to, will not make sense. Make sure to consider the general rule's elements, definitions, exceptions, limitations, and defences.

ANALYSIS – This is the longest yet crucial part of your answer since you are examining and making inferences initially raised by the facts in the rule. In this section, the statements are to match the elements identified in the rule.[3] Furthermore, it would be best if you used the facts to show the examiner how the rule leads to the conclusion.

CONCLUSION– After logical analysis, you will state your answer to the issue in this section. Note that there is no right or wrong answer, and if there are multiple issues, there must be multiple conclusions too.[4]

USING IRAC METHOD IN LAND LAW CO-OWNERSHIP QUESTION

We are using IRAC Method in Land law co-ownership. This land law co-ownership problem question will be used and the IRAC Method law employed to show students how to apply IRAC law method to create a perfect land law problem question model answer to a co-ownership problem question. We have used a previous law exam question which is regularly used. So we hope that you will gain knowledge first on the substantive area of law but moreover we hope this will serve as an IRAC method example. The co ownership land law problem question and answer that we have used discusses the how the best advice should be given and explored.

CO OWNERSHIP PROBLEM QUESTION

QUESTION

Siblings, Indira and Jaxson are registered proprietors of the freehold estate at 10 Biggin Street, which is their shared residential home. Having lived there for 10 years, Indira begins to think about what will happen to the property on her death. As the older sibling, she decides that she would prefer it if survivorship did not operate to the benefit of Jaxon. Rather, she would like to leave a share of no.10 to her grown-up daughter, Sonia, when the time comes. Sonia also lives at no. 10. The property has been extensively adapted because Sonia is a wheelchair user.

Indira discusses the matter with Jaxon one evening. In their discussion, Indira tells Jaxon that she wants to leave her half of the house to Sonia. Jaxon responds by saying that he does not think that a division of the interest into equal shares is appropriate, and that a one-third/two-third split (in his favour) would be a better reflection of their various contributions to the property. Indira disagrees, and they end up arguing. Exhausted, Jaxon says, ‘well, we will have to come to some sort of agreement about this soon.’

After making a note of the discussion in her diary, Indira decides to formalise things by writing to Jaxon. In her letter she writes, ‘I want to leave my interest in no.10 to Sonia. For this reason, I want us to formally declare what our separate shares are. After all, we have separate interests at this point in time. As far as I am concerned, we have equal shares.’ Indira addresses the letter to Jaxon at no.10, and posts it. The letter is delivered two days later. Unfortunately, the letter slides under the door mat, and Jaxon does not see it.

A month later, Indira is changing a light bulb when she falls from the step ladder and sadly dies. By will, all of her property is left to Sonia. Two weeks after this tragic event, a still grieving Jaxon is declared bankrupt. At this time, whilst cleaning the house, Sonia discovers the letter under the door mat. Twelve months later, Jaxon’s trustee in bankruptcy applies to the court, under s.14 TOLATA 96, for no. 10 to be sold.

Advise Sonia.

USING IRAC METHOD FOR YOUR STRUCTURE

IRAC applies to each individual issue. IRAC also applies to the overall advice. You will have to get good at using the IRAC system for an issue while also ensuring the overall answer also follows IRAC. We call this being in helicopter mode because you have to zoom into looking at issues and zoom out to look at the structure.

ISSUE

The issue at hand revolves around whether Jaxson should have the whole property or whether Sonia will inherit her mother’s (Indira) share. Due to the legal basis for the creation of co-ownership between the siblings, Indira and Jaxson of the freehold estate at 10 Biggin Street, the abolition of co-ownership is initiated by Indira. Both Indira and Jaxson meet to discuss the matter; Indira prefers to leave half of the house to her daughter, Sonia. However, Jaxon believes that dividing the property into equal shares is not an appropriate option. Hence, Jaxon suggests that one-third/two-thirds is a viable option depending on the contributions each made to the property.

RELEVANT LAW

Under the effect of s.34(2) Trustee Act 1925 and ss.1(6), 34(2) and s.36(2) Law of Property Act (“LPA”) 1925 is the conveyance 10 years ago operated to pass legal freehold title to both siblings, and this offers Sonia an advantage. Even though there was a joint tenancy between the two siblings, Indira attempted to sever her joint tenancy through writing despite Jaxson not seeing the letter before the death of Indira.[5]

APPLY TO THE FACTS

In this case, the intestacy rules can pass to Sonia since Indira had revered the Joint tenancy between the two siblings. Thus, survivorship is bound not to apply in the legal relationship between the two siblings.[6] Under the case of Kinch v. Bullard, which regards a case very similar to this one, the court was specific regarding the severance of the joint tenancy, and the wife was unable to assert the right of survivorship.[7] Whence, Sonia can use the case to argue severance despite Jaxon not reading the written letter on time. Sonia's chances of winning the argument are high, but the share she will get remains a harrowing court case.

CONCLUSION

Indira meets the elements of share intestate to abolish the co-ownership through the written notice to sever the joint tenancy despite Jaxson not reading it. If the judge relies on the facts of the case, Sonia will benefit even though the quantifiable share remains a case, but she is to stay on the actual occupation literally.

THE FULL ANSWER

INTRODUCTION

This is an advice for Sonia and it will discuss the following issues: First, how Indira and Jaxson hold the 10. Second, how Indira and Jaxson hold the 10 Biggin Street (“10”) in Equity. Third, has severance through either the discussion or service of written notice. Fourth, what is the quantification of Indira or Sonia’s share? Fifth, if Indira’s share passes to Sonia intestate. Sixth, does Sonia have any right to stay at 10? Seventh, will the order of sale be granted to the trustee in bankruptcy?

LAW

Siblings Indira and Jaxson are registered proprietors of the freehold estate at 10 Biggin Street, which is their shared residential home. Sonia is advised the effect of s.34(2) Trustee Act 1925 and ss.1(6), 34(2) and s.36(2) Law of Property Act (“LPA”) 1925 is the conveyance 10 years ago operated to pass legal freehold title to both siblings. The legal ownership between both Indira and Jaxson will be a joint tenancy at law.[8] In a joint tenancy both siblings Indira and Jaxson are ‘wholly entitled to the whole of the interest’.[9] In a joint tenancy there is a right of survivorship. This means if Indira was to die her share will pass to Jaxson automatically. Indira being aware of this has attempted to sever her joint tenancy (turning her interest into a distinct share in equity) because she would prefer it if survivorship did not operate to the benefit of Jaxon. Rather, she would like to leave a share of no.10 to Sonia. Indira as co-owners can choose whether to hold her equitable interest as a Joint Tenancy or as a Tenancy in Common.[10]

EQUITY

Sonia is advised the facts do not tell us - what contribution Indira and Jaxson have made to the freehold estate at 10. There appear to be in dispute about their respective share. Jaxon does not think that a division of the interest into equal shares is appropriate. He feels one-third/two-third split (in his favour) would be a better reflection of their various contributions to the freehold estate. Indira disagrees with this. More facts are needed to be able to provide conclusive advice to Sonia about their respective shares. However, what can be said is the court will presume a tenancy in common exists where there has been an unequal contributions to the freehold estate at 10. However, the court will not go against the express words of the parties, if they have held themselves out as equal owners form the outset.[11] We need to see how the property was conveyed 10 years ago to determine if it was in equal shares as Indira is alleging or in unequal shares as Jaxson is asserting. If at the outset both siblings wished to share all things, then accordingly this would point to a beneficial joint tenancy. This is the requirement for the so called four unities. [12] These being of possession, interest, title and time must be met.[13] Here we cannot say for certain if the four unities are present.

SEVERANCE

As stated above Indira has made her intentions quite clear and used words of severance in her discussions with Jaxson (e.g. ‘separate shares’, ‘we have equal shares’). Will this discussion be enough for severance to have occurred? Co-owners can mutually agree to sever an equitable joint tenancy. The agreement does not have to be in writing,[14] although this is advisable.[15] Indira did formalise things by writing to Jaxon. Indira’s letter appeared to constitute written notice, [16] which is one of the ways severance can occur.[17] Moreover, the notice is in a valid form. Section 36(2) does not specify a statutory form of notice to sever a joint tenancy. However, as with any type of notice, it is advisable that the notice is clearly worded, dated and signed. Lastly the notice has been validly served. It will not matter that the letter slid under the door mat, and Jaxon did not see it. We can distinguish this with the case of Kinch v. Bullard[18] where a wife served written notice on her husband but then later tried to go back on her position and destroyed the letter she sent, after the death of her husband. The husband had not seen the letter. The court said that the severance of the joint tenancy had occurred and the wife was not able to assert the right of survivorship. This authority can be used by Sonia to argue severance has occurred, even though Jaxon did not read it.

INDIRA SHARE INTESTATE

Sonia is advised the effect of the written notice will be that Indira’s joint tenancy is now severed and exists as a tenancy in common. This means that survivorship will not apply in the legal relationship between Indira and Jaxon. This further means that Indira’s share in the freehold estate at 10 can pass to Sonia through rules of intestacy. Leaving one’s share by will, can never amount to severance in itself, as the right of survivorship takes precedence over testamentary dispositions.[19] However because severance has already occurred, Sonia can claim her mother’s share in 10 as her mother’s next of kin or through a will if Indira has drafted one.

QUANTIFICATION OF SHARE

Sonia is probably wondering what proportion of10 she will get. This is not an easy question to answer because we need more details about the conveyance and determination of whether a deed of trust was drawn up, detailing an express declaration of Indira and Jaxson respective beneficial interests in 10. In the absence of an express declaration, we can only advise Sonia the approach the courts will take in determining the quantification of Indira’s share, (namely, the share that Sonia will inherit).

In Stack v Dowden,[20] this case concerned a transfer of the property to an unmarried couple which did not contain an express declaration of their respective beneficial interests in their home. The House of Lords held that the couple were entitled to joint and equal shares in the property, unless a clear contrary intention could be shown. The House of Lords established some guidelines for determining beneficial interests in similar, cases. These were as follows: There is a presumption that the common owners are entitled to share the value of the property equally, this can however be displaced by evidence to the contrary intention.[21] The burden of proof is on the owner who is seeking to show that they intended to hold their beneficial interests as tenants in common.[22] The court must ascertain the parties' shared intentions by having regard to the whole course of their conduct relating to the property.[23] Factors to be considered include: ‘any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties’ relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses’[24]

In Jones v Kernott,[25] Lord Walker and Lady Hale (in Stack v Dowden) were cited: when property is held in joint names, and without any express declaration of trust, the starting point is that the beneficial interest is held equally and there is a heavy burden on the party asserting otherwise.[26] That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change.[27] Common intention is to be ascertained through the parties' actual shared intentions, whether expressed or to be inferred from their conduct.[28] Where the parties did not intend joint tenancy at the outset, or had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, "the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property (Chadwick LJ in Oxley v Hiscock[29]).[30] This is determined through “the whole course of dealing ... in relation to the property” which should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties' actual intentions.[31] Each case will turn on its own facts and Jaxson’s and Indira’s financial contributions are relevant.

SONIA ACTUAL OCCUPATION

As Sonia also lives at no. 10, the general rule is that an interest belonging, at the time of the disposition, to a person in actual occupation will override a registered disposition, so far as the interest relates to the land of which the person is in occupation.[32] The interest that Sonia has is a tenancy in common that she potentially inherits from her mother. The trustee in bankruptcy will have come to know that Jaxson is not the sole owner of the 10 and will actually or constructively know of the existence of Indira and Sonia and their interest.[33] Sonia is in actual occupation because she lives there. In Hodgeson v Marks[34] the court have understood the expression “actual occupation” should be read literally meaning “mere physical presence.” Therefore Sonia has the right to remain in the property even though her interest was not registered.

ORDER OF SALE

The matters to which a court must have regard on an application under s.14 Trust of Land and Appointment of Trustees Act (TLATA) 1996[35] (which include: the ‘intentions of the person or persons who created the trust;[36] the purposes for which the property subject to the trust is held;[37] the welfare of any minor who occupies, or might reasonably be expected to occupy, any land subject to the trust as their home;[38] and the interests of any secured creditor of any beneficiary’[39])[40] do not apply to applications made by a trustee in bankruptcy, to which section 335A of the Insolvency Act 1986 (“IA 1986”) applies.[41] The bankruptcy court has jurisdiction in any application brought by a trustee in bankruptcy under section 14 of TLATA 1996.[42] The court is to make such order as it thinks just and reasonable having regard to the following matters: ‘The interests of the bankrupt's creditors.[43] Where the application is made in respect of land which includes a dwelling house which is or has been the home of the bankrupt or the bankrupt's spouse or civil partner or former spouse or civil partner,[44] the following factors are to be taken into account: the conduct of the current or former spouse or civil partner, so far as contributing to the bankruptcy; [45] the needs and financial resources of the current or former spouse or civil partner;[46] the needs of any children;[47] all the circumstances of the case other than the needs of the bankrupt.[48] Where the trustee in bankruptcy applies to court after the first anniversary of the first vesting of the bankrupt's estate in the trustee, the court presumes that, unless there are exceptional circumstances, the interests of the bankruptcy creditor outweighs all other considerations.[49]

The “exceptional circumstances” that existed here is that the property has been extensively adapted because Sonia is a wheelchair user. It would be unfair to order the sale of the house which is occupied and adapted to a disabled person. It is this type of reason as raised in Re Citro [50] that can be used to postpone a sale in these circumstances. However, seeing that Indira when changing a light bulb fell and sadly died; this will not be able to be argued as the “exceptional circumstances” as this circumstance no longer exists. It is likely the court will order the sale of 10.

FINAL REMARKS

If you like what you have read here about Land Law and an answering Land Law questions using the IRAC Method, then look out for our new Land Law Core Series and Land Law Q&A series. We are currently writing both books and are due to publish them in January 2023. These are the final books in both series and we (as Land Law tutors) hope that giving you a complete set, you now have all the tools you will need to do well in the study of law.

FOOTNOTES

[1] “Example Outline of an IRAC,” Law School Survival, accessed August 13, 2022, https://www.lawschoolsurvival.org/example-outline-of-an-irac. [2] Ibid. [3] Ibid. [4] Ibid. [5] Nicola Laver, “What Is Co-Ownership? : The Law of the Land,” In Brief, accessed August 13, 2022, https://www.inbrief.co.uk/land-law/coownership-land-law/. [6] Nicola Laver, “What Is Co-Ownership? : The Law of the Land,” In Brief, accessed August 13, 2022, https://www.inbrief.co.uk/land-law/coownership-land-law/. [7] [1999] 1 W.L.R. 423 [8] s.1(6) LPA 1925 [9] Burton v Camden LBC [2000] 2 WLR 427 [10] s.34, LPA 1925 [11] Goodman v. Gallant [1986] Fam 106 [12] Megarry & Wade: The Law of Real Property (Sweet & Maxwell, 9th ed, 2019): Chapter 12: Co-ownership, 12-001. [13] Corin v Patton (1990) 169 CLR 540 [14] Percival, M., ‘Severance by written notice - a matter of delivery?’ (1999) Conveyancer 60 [15] Hunter v Babbage [1994] 2 FLR 806 [16] s.196(1), LPA 1925 [17] s.36(2), LPA 1925 [18] [1999] 1 W.L.R. 423 [19] Gould v Kemp (1834) 2 My & K 304 [20] [2007] UKHL 17 [21] [2007] UKHL 17 paragraph 8 [22] [2007] UKHL 17 paragraph 68 [23] [2007] UKHL 17 paragraph 12 [24] [2007] UKHL 17 paragraph 69 [25] [2011] UKSC 53 [26] [2011] UKSC 53 at paragraph 60 [27] [2011] UKSC 53 at paragraph 51 [28] [2011] UKSC 53 at paragraph 31 [29] [2005] FAm 211, para 69 [30] [2011] UKSC 53 at paragraph 51 [31] [2011] UKSC 53 at paragraph 51 [32] paragraph 2, Schedule 3, Land Registration Act 2002 [33] Smith, R J, ‘Overriding Interests and Wives’ (1979) 95 LQR 501 [34] [1971] Ch 892 [35] s.15(1)(d) TLATA 1996 [36] s.15(1)(a) TLATA 1996 [37] s.15(1)(b) TLATA 1996 [38] s.15(1)(c) TLATA 1996 [39] s.15(1)(d) TLATA 1996 [40] Pascoe, s., ‘S. 15 TLATA 1996 - a change in the law?’ (2000) Conveyancer 315 [41] s.15(4), TLATA 1996 [42] s.335A(1), IA 1986 [43] s.335A(2)(a), IA 1986 [44] s.335A(2)(b), IA 1986 [45] s.335A(2)(b)(i), IA 1986 [46] s.335A(2)(b)(ii), IA 1986 [47] s.335A(2)(b)(iii), IA 1986 [48] s. 335A(2)(c), IA 1986 [49] s. 335A(3), IA 1986 [50] [1991] Ch 142