Topic 3 - Co-ownership INTRODUCTION Joint Tenants - No separated shares in the property - As a group they own the entire property - 'Right of survivorship' applies - meaning the surviving JT inherits - Requires four unities Tenants in common - Distinct shares in the property - Shares need not be equal (e.g. 1/3 plus 2/3) - Entitled to physical possession of whole land - Individual share can be left by will Creation of Co-ownership - Joint tenants - by express words (e.g. 'to A and B as joint tenants') - Tenants in common - by express words (e.g. 'A and B as tenants in common in equal shares') - Presumption: o Common law = joint tenants o Equity = tenants in common - Problems? o Re Rose [1962]: 'In equal shares as joint tenants' Re Barbour [1967]: 'Share and share alike as joint tenants' Statutory tests Property Law Act 1974 (Qld) s 35 35 Construction of Disposition of Property to 2 or more persons together (1) A disposition of the beneficial interest in any property, whether with or without the legal interest, to or for 2 or more persons beneficially shall be construed as made to or for them as tenants in common, and not as joint tenants. Land Title Act 1994 (Qld) s 56 56 Registering Co-owners (1) In registering an instrument transferring an interest to co-owners, the registrar must also register the co-owners as holding their interests as tenants in common or as joint tenants (2) If the instrument does not show whether co-owners are to hold as tenants in common or as joint tenants, the registrar must register the co-owners as tenants in common
RIGHTS AND OBLIGATIONS OF CO-OWNERS Alienation - See e.g. right to alienate Hall v Busst (196) 104 CLR 206 Occupation - Each co-owner is entitled to occupy the whole of the premises - Co-owners can invite strangers onto the property - If one party 'ousts' another then they may be liable for occupation rent and/or damages - Oates v Oates [1949], Thrift v Thrift 1975 Ouster - Wrongfully preventing another from using the property - Actual force unnecessary but some express denial needed - Changing the locks, making like generally unpleasant etc may not be sufficient - Occupation rent payable (Re Thurgood [1987] QConvR 54-239; Pascoe v Swan) Outgoings - Insurance premiums and pest control - no obligation to account to another co- owner absent an agreement - Sometimes, however, there is a 'joint obligation' to insure the property (e.g. under a mortgage) - Water and council rates - joint debts for which co-owners are jointly liable - Relevant cases: Muschinksi v Dodds (1985); Leigh v Dickeson (1884); Forgeard v Shanahan (1994) Improvements - At common law no right to seek compensation for improvements or repairs (absent agreement) - In Equity, may be payable at termination of co-ownership - See case of Brickwood v Young (1905) Occupation Rent Payable where: - One co-owner has been formally 'ousted' (Pascoe v Swan) -