PROPERTY LAW

Angela
This situation is clear to see that Co- ownership is involved. There are two parties involved in this co- ownership; Brad and Angelina. We are looking to see the type of ownership they got into and at the end what will they be entitled to. There are two forms of co- ownership; Joint tenancy and Tenancy in common. The presumption of Joint tenancy is that the joint tenants own the entire property in question. The presumption of Tenancy in common is that the tenants own a share of the property in question. Joint tenancy will only be applicable if the test of the four unities is satisfied. Difference with tenancy in common is that you only need to satisfy the unity of possession. Unity of time means the tenants interest of the property must commence at the same time as other tenants. Possession means that the entire co – owned land is the tenants’ entitlement. Interest means interests held should be the same as the duration and time. Title means that tenants involved should be given a title from the same supplier.
Again, we need to understand the sort of co-ownership we are dealing with here before advising the parties. There is a slight hope that we are dealing with joint tenancy as all four unities are present in this scenario. However, there are pros and cons of being a joint tenant, one of which is severance. One of the methods of severance is by notice. This is found in the case of Re Draper and Harris v Goddard . Both cases indicated immediate intention to sever by notice. The first instance of severance in this situation is when Brad wrote a notice of immediate severance stating that he intends to sell the house. Under s36 (2) of the Law of Property Act 1925 , the law states that “any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire". Applying the law to this situation, we just know Brad wrote the letter before he died, we do not know whether he posted the letter. Supposing the Severer (Brad) posted the letter before he severs with precise intentions like in the case of Harris v Goddard , and the letter was delivered to Angelina then the Severance by notice will become effective according to s36(2) of LPA. However, if the severance was posted prior to the death of the Severer and it gets lost in the post, but there is proof of the posting i.e. recorded delivery or registered post then again Severance would become effective but would need a confirmation of proof by the courts.

The second act of severance occurs when Brad left a will for his lover Jennifer. Where a joint tenancy is concerned, a tenant cannot leave a will for another party. When one party of joint tenant decease, the survivor is automatically entitled to the entire property and not even a will can change it. There is no proof of mutual agreements between the joint tenants and cost of dealings. We move unto the Trust section to further advice Angelina of her entitlement of share to the property in question. Where there are two or more tenants involved the issue of trust will arise. This trust will further permit parties to split their ownership into legal or equitable. Express trusts are based upon the intentions of the party and Implied trust are based upon the presume intention of the party. Express trust is usually said to have been a cash contribution to the buying of the land but in another person. This could be clear indication of creating a presumption of resulting trust. Implied trust is usually the result for many scenarios, but it will be very inequitable if a trustee rejects beneficiary interest to the land. Implied trust is made up of the following: resulting trust constructive trust and statutory trust.
In the case of Stack v Dowden , the Courts take this instance to apply the implied trust and the case of Kernott v Jones as constructive trusts.
In Stack v Dowden, both parties were living together at the time constantly. The house was registered under the defendants name. The parties had four children later on and bought a new house, only that this time land was registered in both names. Majority monies came from the defendants building society and the rest came from a bank loan, which was down as joint tenants. They kept their separate bank accounts and savings. The parties split in 2002, with the defendant staying in the house that was registered under joint tenants. The claimant did not want that. The claimant wanted the land to be shared equally between the two. In first instance the Judge favoured the claimant, but as the defendant appealed against the decision made, she won the case of 65% and the initial claimant 35%. The initial claimant made an appeal against the decision. Lordship had to take into consideration that they were co- habitants. Then stated that a couple who registered under joint tenancy has a beneficial interest in the land. This could be proven otherwise. Court will have to look at the common intention of the parties that means their intentions towards the property. This would include the mortgage, loan repayments etc. Given to it the defendant put in more finance to these things than the claimant. The defendant judgement remained the same 65% to 35%.
In the case of Kernott v Jones, the couples bought a property together in the mid 1980s and had two childen together. There had been not written indication as to sever from the tenancy or any other indications.Mr kermott did not take up responsibilities for his children and split up with Miss Jones in 1993. Mr. Kermott used the joint insurance to purchase his land which was divided equally between both parties. Mr kernott was no longer interest in the property, despite having to appeal against decisions made in the courts. The Court of Appeal believed that he had no intention s in the property again, due to the fact that he did not take the responsibility of a father.
Applying this case to Angelina, She did not contribute to the land in terms of finance although she did sign the joint tenancy agreement with Brad in the beginning. This clearly indicates she had beneficiary interest in the land. For the mere fact that Angelina is a joint tenant and also registered jointly under the mortgage meant that she contributed in the little way she could. Angelina and Brad may have made agreements that she would take care of the children and the house. Again , it does not say that she made improvements in the land, even if she did it would not be enough to prove she has a share Pettit v Pettit . When Brad’s father contributed to the property that could indicate also that she contributed 50% of what Brad’s father gave as they both agreed to ask the father. In conclusion, Angelina would be entitled to a share in the property under resulting trust in equity as given 50 % of the property.
Jennifer
First of all we have to find out whether or not Jennifer would be entitled to a share in the property in question. We have already established that there was a joined ownership between Brad and Angelina, as they satisfied the four unities. This will automatically give Brad and Angelina a right to survivorship. This means that even if one of the joint tenants decides to write a will, it will be made void. Jennifer will not be entitled to a share in the property through Brad’s will due to the fact that there is a joint tenancy between Brad and Angelina.
Brad made an indication of severance by notice to Angelina under s 36(2) of LPA . This was considered to be made under immediate effect to severe. He did make his intentions clear stating that “he wanted to sell the property” indicating that as soon as possible. Yet, we perceive that Angelina did not receive the notice to severe with immediate effect. The case would have been different if Angelina received the notice of severance, as Angelina received the Notice. The Law would have come into full effect, making the joint tenancy to turn into tenancy in common. Jennifer cannot claim severance for her claim as there was no clear indication that Brad actually posted the letter. If Jennifer had proof by recorded delivery or registration of posting then the notice by severance will be effective.
We now have to find out whether Jennifer is entitled to a share in the property through implied trust and express trust.
Express trust is based upon the intentions of the trust while implied trust is based on the presumed intentions.

Charles
We want to find out whether Charles is entitled to a share of the property in question. We need to consider Trust, and what kind of trust in question.
Express trust is based on intention through writing under s 53(1) of the LPA , while implied trust is based on presumed trust s 53(2) of the LPA.
We will look into resulting and constructive trust to further advise Charles.
Resuting trust is when a person contributes money to the intitial cost of a property but in the name of another person that owns the property. Equity is presumed that the individual giving the money to another individual is said to have a beneficiary interest in the property, and is not seen as a mere gift. In the case of Bull v Bull, a mother contributed to the property of her son. He was registered on the house. After he got married the wife wanted to give the mother in law out. The court held that the mother is in tenancy in common under the statutory trust of sale.
In this case, to advise Charles I would use the Presumed resulting trust.
When there is property passed between individuals or relatives, it is presumed to the courts that it is an outright gift, and it has no reason to fall into a resulting trust. This is known as the presumption of advancement. However, when it is said that that contribution was miscarried then presumption of resulting trust is made effective. In Bennet v Bennet , the father gave his property to his son. This is to be considered as an outright gift.
Presumed resulting trust may arise in one of the three scenerios:
When it is a voluntary gift, contribution to the purchase of a land, or that the presumption of the gift being outright was false. In this scenario we know that Charles contributed to the purchase of the property. Under section 60(3) of the Law of Property Act 1925 the law inhibits the creation of any automatic resulting trust but refuse to say anything with regards to the presumed trusts. When an individual contributes to the purchase of the property, it is said that, that individual is permitted to hold comparable equity in the interest of the land. This is known to be the simplest way of understanding presumed resulting trust. This was stated in Re Vandervall by Megarry. The individual that contributes to the purchase of a property holds more interest than any co- ownership due to the fact that they put money down for the land. Charles has an entitlement to the land as he contributed £40,000 to the purchase of the property. He has up to 50% of the share. Although Charles did not give any clear indication as to whether he had any interest in the property. The scenario just says that he contributed £40,000. When an individual contribute to the mortgage they will create an equitable interest in the land as in Lloyds Bank v Rosset . In Burns v Burns , it must be shown that the contribution to the property, must be made under the intention that there is no interest in the property. A presumed resulting trust would be made effective if the courts would need to rebut the outright gift .