Real property Week 3, Co - ownership Joint tenants · No separated shares in the property · As a group they own the entire property · Right of survivorship applies - meaning the surviving JT inherit · Requires four unities Tenants in common · Distinct shares in the property · Shares need not be equal (eg 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 ( A and B as joint tenants) · Tenants in common - by express words ( eg to A and B as tenants in common in equal shares) Presumption · Common law = joint tenants · Equity = Tenants in common Problems? - Re rose [1962] ' In equal shares as joint tenants' - Re Barbour [1967] share and share alike as joint tenants Statutory test Property Law Act 1974 (qld) s35 · (1) A disposition of the beneficial interest in any property, whether with or without the legal interest, 2 or more persons together beneficially shall be construed as made to or for them as tenants in common and not as joint tenants Land Title Act 1994 (qld) s56 56 Registering Co - owners (1) In registering an instrument transferring an interest to co - owners, the registrar must also register the owners as holding their interest 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 - owner's ass tenants in common. Recap
· Co - ownership refers to 2 or more persons who own the same land at the same time . there are only 2 forms of co - ownership: JT and TIC · JT carries the right of survivorship · Common law presumptions have been displaced by statute ( the PLA) Rights and obligations of Co - owners Alienation · See right to alienate Hall v Busst ( 1960) 104 CLR 206 · Occupation, each co - owner is entitled to occupy the whole of the premises · 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 Ouster · Wrongfully preventing another from using the property · Actual force unnecessary but some express denial needed · Changing the locks, making life generally unpleasant ect may not be sufficient · Occupation rent payable (Thurgood) [ 1987] QconR 54- 239; Pascoe v Swan) Outgoing · Insurance premiums and pest control - No obligation to account to another co - owners absent an agreement · Sometimes, however, there is a joint obligation' to insure the property (under a mortgage) · Water and council rates - Joint