Nature of the claim
The interest is an equitable interest
•    Brickwood v Young (1905)
o    As it attaches to land, it can be enforced by successors in title against successors in title (see below)

How are amounts set off?
Claim for the lessor of the increase on the value of land and the money spent
•    Squire v Rogers (1979)
o    FACTS
    -    Property jointly owned
    -    Co-owner spent $100K on improvements, but as part of this on repairing damage from cyclone, value only goes up $15K
o    HELD - Only $15K payable

Amount is offset against occupation fee or profit
•    Forgeard

*Occupation Fees

When co-owner is in occupation and the others are not, no requirement to make payments to the other co-owners, as that person is merely exercising his/her rights to occupy the building
•    Luke v Luke (1936) NSW
o    FACTS    
    -    Co-owner in possession for 15 years
o    HELD - Other could not sue, as merely exercising common law right to occupy

Exceptions (ie they have to pay rent if):
0.    Exclusion – ouster clause
o    If co-owner in possession deliberately excludes others
    -    Physical expulsion
    -    Emotional expulsion
•    If make lives so miserable that they feel they must leave
0.    Offset for improvement
o    Contribution for benefit of occupying offset against claim for improvement
0.    By Agreement – Fixed by market rent
o    Must pay for benefit of possessing the other half

If offset for improvements, Occupation fee should not exceed the value of improvements
•    Forgeard v Shanahan (1994)

For ouster exception, must be wrongful conduct forcing other person out
•    Biviano v Natoli (1998)
o    FACTS
    -    A and B co-owners
    -    Title in A’s name, but both contributed equity to purchase price
•    Therefore co-owners in equity, tenants in common
    -    A got AVO on B, which required B to leave
    -    A remained
    -    B sues for occupation fee on basis that A ousted B from property
o    HELD - A not liable for occupation in rent
•    Nothing wrongful in As conduct to force B out
    -    BUT
•    A knowingly denied Bs title in property when application under 66G
o    This denial amounted to ouster from property
    -    So A must pay occupation fee
o    Occupation fee stopped at time she withdrew denial of Bs title

Occupation fee is the market value of the property divided by the shares
•    Biviano v Natoli (1998)
o    Don’t have to pay them your share
    -    Ie if two co-owners, occupation fee is half market value, if 3 co-owners, pay 2/3

*Profits/Income

Common Law
No common law duty to account to other shareholders for income property earns
•    Logic:
o    Each co-owners owns full rights to the income, so you do not have to account to other co-owners

Situation under equity

There was Duty to account for income ‘receiving more than comes to his just share or proportion
•    Statute of Anne 1705
o    Interpreted narrowly:
    -    Only where co-owner received income or profits from third parties who used or occupied that land as tenant, and paid one co-owner more than their fair share
    -    Did not alter the right of one co-owner to retain the whole income and profits where that co-owner had developed or worked the property at his own initiative and expense, and the other co-owner elected not to participate
•    Ie no obligation to share the fruits of one’s labour
•    Equally, if co-owner made a loss, the other would not have to contribute
•    BUT
o    Statute of Anne repealed in NSW in 1969 by Imperial Act Application Act
    -    Doubt over whether equity has jurisdiction, see after these cases, which deal with the old presumption

Must share rent received (ie if not earned by hard work)

Passive owner still gets share of the profits, although working owner may get a credit for the expenditure
•    Squire v Rogers [1979]
o    FACTS
    -    2 co-owners owned caravan park
•    A lived on site and ran the caravan park
•    B
took no interest in the park
    -    Active owner spent 100K, but only improved park by 15K
    -    Partition suit
•    A wanted recompense for the expenditure
•    B wanted a share of the income that came from the park
o    HELD - B entitled to share of income in property. But, by standing by and watching A spend 100K on improvements, B agreed to his spending. Thus, in court of equity, as a condition to B’s claim for half the income, B had to give A a credit for the full amount spent on the property

Do not have to share profits earned by own hard work
o    Applies regardless of situation – under equity and common law

Do not have to share profits with co-owner that does not contribute to them (second point, above)
•    Henderson v Easton [1851]
o    FACTS
    -    2 brothers owned farm as tenants in common
    -    Only one did all the work
o    HELD - Brother who worked the land did not have to share profits with fellow co-owner
•    Reese v Reese [1931]
o    FACTS
    -    4 brothers owned farm
    -    2 worked and 2 did nothing
o    HELD - Only the two that worked the farm got to share profits, as they were receiving no more than their just share or proportion

Situation since 1969
•    Doubt as to jurisdiction of equity
o    Applies when
    -    Partition or deceased estate
    -    Resumption
•    Still don’t have to share fruits of own labour
o    See above
•    Only have to share income from third party (eg rent)
o    See Squire v Roger (above), which is post 1969
    -    Co-owner entitled to set off against liability the outgoings expended to earn income if passive partner made no complaint

No right to account if own owner receives all income from property, as statute repealed
•    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 - No right to account if own owner receives all income from property. Contribution to mortgage and rates could be equated with claim for compensation for permanent improvements, as improve party’s equity in property

*Waste
•    Co-owner cannot be liable for waste, as they own the property
o    Wanton destruction may not be allowed, but this is uncertain
 
Severance of Co-ownership

Tenancy in Common
•    Terminates when
o    Land all conveyed to own owner
o    Sale or partition under Section 66G of Conveyancing Act

Joint Tenancy
•    Can basically be severed in any way except through a will

Severed by:
0.    Operation of Survivorship
0.    Court order
0.    Sale or partition under Section 66G
0.    Merger
0.    Mutual Agreement
0.    Unilateral Severance

*1. Right of survivorship
•    When land vests entirely in last surviving joint tenant

*2. Court Order
•    When court order impliedly or expressly inconsistent with continuance of joint tenancy
o    Eg Under Family Law Act 1975 (cth)
•    Note
o    No severance at law until execution of deeds (old system) or registration (Torrens Title)
o    May be severance in equity from the date of order

*3. Partition/Sale Under Section 66G Conveyancing Act
•    Co-owner becomes owner of specifically ascertained portion of the land

By agreement
•    Each conveys together or transfers the portion they agreed to accept
•    If land not easily divisible
o    ‘Owelty money’ paid to equalise the interests

Compelling partition
•    No common law right to compel partition of property
•    Statutory right conferred in Partition Acts 1539, 1540
•    Courts allowed to order sale of land and distribute proceeds instead of partition when seen as more beneficial (if hard to divide)
o    Partition Act 1900 NSW
•    Mechanism for terminating co-ownership where owners cannot agree on how ownership should be terminated
o    Section 66G to section 66I Conveyancing Act
    -    Also available under Wills, Probate and Administration Act 1898 (NSW) where interests obtained under intestacy
•    Co-owner includes co-owner of
o    Legal or equitable interests
o    Incumbrances such as legal or equitable mortgage
    -    Section 66F

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