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Boundaries – rectification
The LR has power to alter the register to correct a boundary error, but this can be refused if there are ‘exceptional circumstances’ that justify no... Read more...
Affordable housing: a boost in the Budget
The SDLT burden on shared ownership trusts was reduced in the recent Budget. Laurence Target explains why this should make them a more attractive fo... Read more...
Mental illness and tenants
MODERN HEALTH POLICY IS THAT THOSE WHO suffer from mental illness should take such part as they can in society, rather than being institutionalised... Read more...
Co-ownership
Joint tenancy – severance by will?
We all know that the ‘right of survivorship’ applies when there is a joint tenancy (ie if there are two joint owners, and one dies, then the other will succeed to the deceased’s share). To prevent that happening, the remedy is simple – the joint tenancy must be ‘severed’, so it then becomes a tenancy in common (with each owner then having a distinct share in the property which will not pass to the survivor).
Joint ownership - HL guidance
It is the HL decision in Stack that has focused much recent interest on the topic of unmarried couples (whether they be in a relationship, or mere friends) who buy a property together. The case involved a couple who bought a property in 1993 for £190,000 financed by a joint mortgage of £65,000, plus the proceeds of sale of their first property of £67,000 (in her sole name), and £58,000 cash (from a building society account in her sole name).
Joint ownership - unmarried couple
If you are acting for an unmarried couple who are buying a property, then what are their respective beneficial interests? This is something that you, as the conveyancer, should take instructions on.
Co-ownership and occupation: Solutions for an increasingly common conundrum
authorsJames Brown and Mark Pawlowski analyse a problem regularly facing couples wanting to secure a home for themselves and, at the same time, provide an inheritance for their children.
Joint Ts – ECHR?
The rules on joint Ts can operate particularly harshly within the rent sector (especially with public Ls). For instance, T may think he has security of tenure under a secure or assured tenancy and then suddenly receive a letter from his social L informing him that he no longer has the right to occupy. This is because the other joint T has given notice to quit (probably encouraged by L, who lacks the resources or inclination to provide separate homes for each of the joint Ts).
Joint owners - instructions?
If you act on behalf of joint buyers, then you should always check what the joint purchase arrangements are (ie is it a joint tenancy or are they to be tenants in common?). So:
Constructive trusts - implied rules relaxed
The courts can use the equitable device of a ‘constructive trust’ to give a property interest to someone who does not have ‘legal’ rights. Typically, this will be done when the relationship between an unmarried couple comes to an end, so as to give the non-owner a stake in the property. Likewise, it can be used to protect the interest of a married (unmarried) partner when a mortgage lender seeks possession of the property (or when a creditor/trustee in bankruptcy seeks possession).
Trust of land - Registered Land
Tenancies in common are more popular than they used to be. For instance, modern tax planning has encouraged severance of joint tenancies to ensure the IHT nil-rate band is used on the first death, whilst, at the same, time the increase in divorce has led to more couples wanting to differentiate between their individual assets.
The tenancy in common trap
ImageKatherine Neal questions whether, in today's world, a trust of land is sufficient protection for personal representatives
Co-habitees – division of proceeds
The problem is common enough: a property is bought as a home for an unmarried couple who intend to live as man and wife; both make financial contributions to the property, although it is bought in one partner’s sole name and there is no express declaration of trust. How are the proceeds of sale to be divided?
Constructive trusts: quantifying shares in a property
ImageMark Pawlowski of the University of Greenwich examines a recent Court of Appeal ruling providing guidance on the application of constructive trusts in the context of the family home
Partnership – tenancy in common?
If partners acquire a property using partnership funds, then there is a presumption that the property is bought for the partnership (s21 Partnership Act 1890).
Now its time for… Sitting under a Palm Tree
The courts have for some time now attempted to reconcile the two aims of maintaining clarity of property rights and allocating shares in property which appear fair in the particular instance.
Matrimonial – conveyancing
We all know that cautions against dealings and inhibitions have been abolished, and that matrimonial interests should now be protected by notices (agreed or unilateral) or restrictions.
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