Two forms of co-ownership
o    Joint tenancy
o    Tenancy in Common

Joint Tenancy
•    Each co-owner owns the whole land, not just a 50% share
o    No distribution of seisin
o    Do not hold proportionate interests as do tenants in common
o    Each joint tenant has a right shared with others to the whole property, but no individual right to any share
o    All joint tenants treated as single owner of property
•    While joint tenants are alive, each joint tenant is able to deal in a portion of the share in property
o    Eg right to sell half share in the property
•    Characterised by 4 unities, and right of survivorship:

Right of survivorship
•    If one tenant dies, the surviving joint tenant takes the whole property
o    The deceased’s interest is extinguished
•    Cannot leave your right to someone else after you die, as it goes to the other joint tenant
•    Company can be joint tenant under Section 25(1) Conveyancing Act
o    Right to survivorship if company dissolved (Section 25(2))
•    If joint tenants die, the one that survives the longest gets the whole property, and is able to pass it under his or her will

Where it is uncertain, the deaths are assumed to have occurred in order of seniority: ie the youngest joint tenant is deemed to have survived the longest
•    Section 35 Conveyancing Act

When joint tenants die simultaneously, the youngest is deemed to have survived the longest
•    Hickman v Peacey[1945]
o    FACTS
    -    Bomb station hit by bombers, all joint tenants died

The four unities
1. Unity of Possession
•    Each tenant together with the others is entitled to possess the whole property
o    A joint tenant cannot claim possession of any particular part of the land

2. Unity of Interest
•    Each joint tenant must have identical interest in the property
o    Cant have one on leasehold and one on freehold
o    Must have same potential duration
    -    Cant have one with life estate and other with fee simple
o    Cant have one with ¼ interest and other with ¾ interest
o    Cant have joint tenancy split be conveyance

3. Unity of title
•    Each joint tenant must have acquired interest under same document
o    If A and B are joint tenants where land conveyed to them under one deed as joint tenants, and B conveys interest as Joint tenant to C
    -    A and C are not joint tenants
•    But, trustee who is appointed later can become a joint tenant
o    Trustee Act (NSW) 1925 Section 9

4. Unity of Time
•    Interest of each joint tenant must be vested at the same time
o    If X conveys property to the heirs of A and B as joint tenants, you wont know who they are until A or B die, it is unlikely that the heirs interests will vest at the same time, so there would be no joint tenancy
•    May not apply in NSW under section 44(2) Conveyancing Act

Tenancy in Common
•    Much less close legal relationship
•    Tenant has a distinct share in the property
o    Share does not have to be equal
•    Can leave interest to someone else
o    No rights of survivorship
•    Only requirement is unity of possession
o    No one tenant can claim particular possession
o    Each tenant is entitled to the whole of the land
o    May have separate title for each share
o    Any combination of interests is possible
    -    Eg fee simple, life estate, leasehold interest

Creation of Co-ownership

Prior to Conveyancing Act
•    Common law presumption that a grant or devise of the same legal interest in land to 2 or more people together created a joint tenancy
o    Rebuttable if:
1.    One or more of the 4 unities exists
2.    Grant or devise contained words of severance
•    That create individual shares, eg ‘equally’ or ‘share and share alike’
•    Eg Provision in settlement inter vivos or will that capital or income to be advanced to a child beneficiary for maintenance and education to be debited against that child’s share on eventual distribution made it a tenancy in common
o    Ward
3.    Other indications that a tenancy in common was intended
•    No unity of title

•    Equity prefers to regard parties as Tenants in Common rather than joint tenants
o    Wherever parties are tenants in common of legal interest, they are also tenants in common of equitable interest
o    Joint tenants of legal interest were tenants in common of equitable interest when parties organised affairs in a manner which demonstrated an intention to hold beneficially as tenants in common:
1.    Purchase money not equal
•    Unless parties clearly intended that ownership of the property with right of survivorship
•    If money equal then joint tenancy
2.    Persons advanced money on mortgage
•    Equity presumes tenants in common of beneficial interest in shares proportionate to the respective amounts

Conveyancing Act, Section 26
Presumption that transfer or devise of land to two or more people now creates a tenancy in common (unless exception applies)
•    Not limited to beneficial interest
•    Reverses common law presumption in favour of joint tenancy

Rebutted if expressly create joint tenancy: but must clearly indicate that a joint tenancy desired

Exception where property held by mortgagees, trustees, administrators

Section 26 indicates preference for law to provide tenancy in common, even where the section does not apply
•    If all that is known is that A and B together own the beneficial interest, then in the absence of evidence that they intended a right of survivorship to apply between them they are tenants in common
•    In absence of evidence to contrary, each tenant is common is regarded as holding their share according to the proportion contributed
•    Delehunt v Carmody [1986] 61 ALJR
o    FACTS
    -    D and C bought house together.
    -    Property put in C’s name, although A and B paid equal share, and had an oral agreement to convert to both of their names
    -   
C died
o    HELD - D gets half share
•    C held property in a resulting trust in favour of D and C as tenants in common in equitable shares
•    Indirect influence of s26 requires resulting trust giving similar interest as if land conveyed as tenants in common

Where persons entitled to an equitable estate as Tenants in Common become entitled in their own right to the legal estate equal to and co-extensive with that equitable estate, they both hold the legal and equitable estates as Tenants in Common, unless they otherwise agree
•    Section 27 Conveyancing Act

Application to Torrens Title Land
•    Two or more persons may be registered as joint proprietors of an estate or interest of Torrens title land shall be deemed to be entitled to the same as joint tenants
o    Section 100(1) Real Property Act

Rights of Co-owners inter se (amongst themselves)

*Improvements and Repairs
•    No difference in treatment of joint tenants and tenants in common

In absence of agreement, at common law co-owner who renovates or improves the property is not allowed to claim compensation for expenses
•    Leigh v Dickenson [1884]

Passive co-owner has no right to stop work from being done, as long as they are not committing waste
•    Leigh v Dickenson [1884]

When can claim be made?
If court of equity splitting up property between co-owners in partition suit, might give the ‘improver’ more money.
•    Passive right – only useful when co-ownership brought to end
o    Resumption – compulsory acquisition: Brickwood
    -    Benefit of improvements reflected in division of proceeds
o    If property being partitioned
o    Sale under court order - 66G Conveyancing Act

What type of improvements can be claimed?
Can claim for improvements only – must be more than mere repairs and maintenance
•    Forgeard v Shanahan (1994) 35 NSWLR 695
o    FACTS
    -    De facto relationship, purchased home
    -    Names registered as joint tenants
    -    Equal contribution to price, with remainder by registered mortgage
    -    After break up, Mr F left, and stopped paying mortgage repayments
    -    Mrs S kept paying mortgage, rates, water etc
    -    Mr F sought 66G order for appointment of trustee for sale
o    HELD - Insurance premiums and pest control cannot be claimed as improvements. Allowance made in favour of owner making mortgage repayments, water and council rates, but that arises from a claim for contribution of payments made by one debtor of a debt jointly owed, and not because of co-ownership

Contribution to mortgage and rates could be equated with claim for compensation for permanent improvements, as improve party’s equity in property
•    Forgeard v Shanahan [1994] NSWLR
o    FACTS
    -    De facto relationship, purchased house under joint tenancy, financed by registered mortgage
    -    F left in 1981, but paid mortgage repayments till mid 1982
    -    S made rest of instalments
    -    S claim for contribution, contribution les than occupation fee
o    HELD - As above. Much criticised

An improvement can run with the land
•    Brickwood v Young (1905) 2 CLR 386
o    FACTS
    -    Porter thought he owned property, but due to conveyancing error only had a ¼ share with other tenants in common
    -    Spent considerable money improving land – building houses
    -    Sold property for full value to Brickwood (but Brickwood only gets ¼ share)
•    Purchase price reflected improvements
    -    Council resumed property, and Brickwood discovers only owns ¼
o    HELD - Brickwood entitled to compensation for value of improvements as he paid for them
•    Compensation out of resumption moneys
    -    Note: as claim in equity, must do equity
•    Had to offset 75% of rent he had received against credut for improvements

Can claim for improvements made as a potential co-owner
•    Cardinaels-Hooper v Tierney [1996]
o    FACTS
    -    M and 2 sisters equitable co-owners of land owned by late father
    -    Mother had life estate, died in 1990
    -    Prior to mothers death, M lived in house with mother, M spent $7870 on landscaping, and value improved by $10,000 (prior to becoming co-owner)
    -    After death, leased out rooms for $14,000
o    HELD - M entitled to compensation for improvements made as potential co-owner under s66G Conveyancing Act. $7870 offset against $14,000 before the rest split 3 ways

Cannot recover for maintenance or repairs
•    McMahon’s Case
o    Strong dissent: Kirby J
    -    Preventing property from falling into disrepair is a benefit, and recompense should be made, otherwise no incentive to maintain

•    It is unresolved whether the estate of a spending joint tenant co-owner has a claim against a surviving co-owner when the death of the spender terminates the co-ownership through survivorship

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