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Introduction

The last day I touched upon co-ownership when speaking about


registration of title. Weve seen already that on many occasions
people want to divide ownership of land up into consecutive
interests A gets a life estate, then B gets a life estate, then C gets
a fee tail (which we dont have anymore), then a fee simple, and its
one after the other. But co-ownership doesnt involve consecutive
interest, instead it involves people enjoying land concurrently. And
its not the scenario that I outlined at the start of the year where you
have one person who owns the land and another person who has a
right of way or a restrictive covenant or a lease. While those rights
may be exercised harmoniously with the rights of the owner, they
are different rights. Co-ownership involves people having the same,
concurrent rights of ownership. Together they make up an ownership
unit. And of course this is extremely commonplace. The vast
majority of residential properties in the country occupied by married
or co-habiting couples are co-owned land. The old phenomenon
where the property was put into the husbands name has gradually
been worn away. And its not confined to married couples, it can
apply to anybody. For example, sometimes a person makes a will
and leaves a property to their children as a group. Another common
example is a partnership of solicitors or other professionals. The
partners own the property together. So co-ownership is not
something that is simply of academic or passing interest, is highly
relevant.
Having said that, the problem with co-ownership is, while its fine
when everybodys getting on together, the nature of the human
condition is that people fall out. Thats where co-ownership often
runs aground. Most divorce disputes can be sorted out in a family
law context. Outside of family law, sometimes co-owners fall out
because a partnership goes wrong but usually that is taken care of
because the partnership agreement will have a dispute resolution
mechanism within it. But where you often find a problem is where
you have siblings. Because siblings have a great record for hating
each other in money matters. And the terrible thing in sibling
situations is that sometimes the co-ownership was effectively
dropped onto them; instead of having the sense of dividing the
estate up so that they didnt have to have anything to do with one
another, they are left as co-owners, which causes all sorts of
problems.
So the law has to provide for co-ownership because it is needed
the law responds to consumer demand but also has to provide the
remedy to sort out problems that arise. Really thats the sum total of
the topic.
We have two forms of co-ownership that operate: joint tenancies
and tenancies in common. As I indicated last week, the word

tenancy is not to be confused with leasehold arrangements. Of


course you can have a co-owned lease: if a couple bought an
apartment it would be held under a long lease. But tenancy here
does not confine the context to the leasehold sphere. Here, tenancy
means holding. People holding land in a particular way, whether its
freehold or leasehold. Joint tenancies and tenancies in common
have fundamentally different characteristics and requirements.
Joint Tenancy
Right of Survivorship
The joint tenancy is a much more sophisticated mechanism, but it
has advantages and disadvantages, which dont appear with the
tenancy in common. You have to make a choice, really, when youre
setting out on the road of co-ownership which arrangement suits
you better. A joint tenancy has one obvious advantage over a
tenancy in common and that is that a joint tenancy is governed by a
concept called survivorship. Survivorship is present with joint
tenancies, its not present with tenancies in common. Say you have
three co-owners A, B and C. With a joint tenancy, they make up an
ownership unit, but effectively its a single unit of ownership. They
do not have distinct shares, and thats critical. With a tenancy in
common, distinct shares are possible. A could own 50% with B and C
owning 25% each. Now, when youre talking about co-ownership,
you never talk about shares as entitling you to a piece of the land;
you cant mark off a portion for yourself. That doesnt work with coownership, because thats whats called a partition. If you have an
arrangement between co-owners whereby they divide the land up
so that each has exclusivity in respect of a piece, there is no more
co-ownership. And as we will see, thats one way you can bring an
end to co-ownership where the parties either agree to do this or go
to court to have this done. So if you dont want to be a co-owner
anymore, one of the solutions is to partition. But while co-ownership
subsists, you have no such entitlement to appropriate or
commandeer a part of the land because each has an equal right to
the whole thing. And that applies with both joint tenancies and
tenancies in common. The only thing that the courts do is lay down
basic rules of decency. So you cant walk into the bathroom when
someone is using it. But other than that one has an entitlement to
possession of the entire property, and the size of the shares in this
context would really only be of relevance say if the property yielded
a rent. In that case, each would be entitled to a sum proportional to
the size of their share.
So in a tenancy in common you call these distinct, but undivided
shares. Theyre undivided because theres no partition. If they
became divided shares there would be no co-ownership. But with a
joint tenancy there is no distinct share at all. With a joint tenancy,
the owners are, in a metaphorical sense, one person, one entity.
Therefore, none of them can have more than the other you cant

have more joint tenancy than the others.


A further consequence of that is, if one dies, the only consequence
is that the others are left in ownership. The others are the survivors.
And you have to be careful about the language and people are
sloppy about the language. If A dies, B and C dont inherit. Nobody
inherits anything that A had in respect of the joint tenancy because
nothing passes. All that happens is the ownership unit is left with
two members. Theyre not given anything, they dont depend on As
will, they dont depend on intestacy, theyre simply left as the unit.
The unit now comprises 2 instead of 3. The right of survivorship
operates in favour of them and it will keep happening until youre
left with one. And the Succession Act 1965 makes that very clear.
Nothing passes into your estate and the beneficiaries under your will
cant turn up and complain.
On the other hand, with a tenancy in common, this distinct piece of
property does not pass to your fellow co-owners. When you die, your
share can pass into your estate. So the 25% that you owned could
then be left to your family or whatever. It could be divided up
between 4 children so that each gets 1/16. And this is the thing that
I was talking about last week about why the registration of title
system prefers joint tenancy you can see already the
fragmentation of ownership. Fragmentation causes problems when
you need to deal with the land because you have to account for all
the shares, and if you havent accounted for all the shares you dont
have a good title; you cant certify it to a bank and you cant borrow
against it. And the reason is that each co-owner has an equal right
to possession; majority rule doesnt work here. You may own 15/16,
but if another person owns 1/16, you cant kick them out. With joint
tenancies on the other hand, the pool is dropping in number so its
only going to get simpler to deal with the property. And that is a
fundamental difference between the two. The right of survivorship
only applies with joint tenancies.
And that factor is what should be what really should inform the
decision as to whether to opt for a joint tenancy or a tenancy in
common. Joint tenancies are often preferred by married couples or
co-habiting couples because the understanding is that when one
dies the other should get it all. Tenancies in common, on the other
hand, are more suitable to an arrangement where youre attitude is
that you dont want a survivorship to benefit the co-owner; you want
to keep what you brought in. So for example, if you had 5 people
setting up in practise as solicitors, each of them is going to say Im
not signing up to a joint tenancy because Ive got a wife and
children dependent on me that I have to provide for when Im gone.
And so theyd sign up for a tenancy in common.
The Four Unities

So what type of co-ownership you use really depends on what


situation youre trying to cater for. And unfortunately over the years,
litigation has emerged simply because people arent clear in their
intentions and dont specify what type of ownership they want.
Sometimes youre spared that enquiry as to which type youre
dealing with because joint tenancies have a number of requirements
which, if absent, dont allow you to have a joint tenancy. And these
requirements are called the Four Unities:
1. Possession
2. Interest
3. Title
4. Time
1. Possession
Possession we can deal with very quickly because weve already
looked at it. Possession is a unity of both forms of co-ownership.
Whether its joint tenancy or tenancy in common, there has to be
unity of possession. Everybody within the co-ownership has an
equal right to possession of the entire. And if its not there it cant
be a joint tenancy and it cant be a tenancy in common youve got
a partition situation, a division of property into exclusive bits.
2. Interest
Interest means each of the joint tenants must have the same
proprietary interest. So you couldnt have one with the fee simple
and another with the life estate.
3. Title
The must all hold under the same disposition. They must have all
inherited pursuant to the provisions of the same will or they must
have all acquired the property pursuant to the same deed of
conveyance. Theres no unity of title with different conveyances
from different people.
4. Time
Time means that all of their interests must be vested at exactly the
same time. Now, equity has made a slight exception in respect of
that where you had children qualifying for ownership. This was the
old family settlement sort of situation. The property would go to the
children, but the children of course would be born at different times.
They couldnt all be born at the same time and in OHea v Slattery
[1895] it was held that doesnt prevent the children from having a
joint tenancy in equity; they enter the class (being a child) at
different times but equity relaxes the rule slightly.

Tenancy in Common
Those unities must be present with a joint tenancy. Tenancy in
common is a different kettle of fish. You only have to have:
a) Unity of possession
b) Distinct undivided shares in a tenancy in common.
Creation of Joint Tenancy/Tenancy in Common
That brings us then to the question of how do you know what youve
created. The simple answer is that you shouldnt even have to ask
that question if youre anywhere close to competent. Because if
youre trying to create one or the other you should be able to
articulate it in the document. Its only when people are careless that
you have to work it out. With registered land (which will represent all
of the land in the country eventually), as weve seen, the
Registration of Title Act 1964 saves you from that problem
because it creates a presumption that when two or more people are
registered together as co-owners, they are joint tenants. That is
helpful and removes some of the uncertainty, but what happens if
youre still operating in the unregistered system and the documents
that youre dealing with dont contain sufficient indication? Well you
then have tension that operates in the law of co-ownership, one of
these classic situations where equity and common law go their
separate ways. Equity favours tenancies in common because it likes
the fairness of people having distinct shares. It doesnt like the idea
that you may have chipped in but subsequently lose out. Because if
you die as a joint tenant theres nothing for your successors.
Survivorship operates and theres nothing for your estate. Equity
likes the idea that you have distinct shares because your estate
benefits. Even if you didnt mention it in your will, it will pass on
intestacy. Theres a hint already of the sort of litigation you get: one
person dies and one party asserts that they were a joint tenant and
that survivorship thus operates, and the other is asserting that he
was a tenant in common because they are the successors, the
beneficiaries under a will.
But the common law, which likes tidiness, favours joint tenancies. It
likes the idea of the pool of people narrowing down. Thats the
modern explanation as to why the common law favours joint
tenancies but theres in fact a feudal explanation: the common law
liked the idea that youd have a tapering number because it didnt
like the idea of having multiple tenants in respect of a given piece of
land multiple feudal tenants. Because it would mean that the lord
would have to keep chasing lots of people for feudal dues, instead of
one person. So the common law from the get-go favoured joint
tenancies. And in modern times its stance is justified in terms of the
tidiness or order it brings to the title.

But when youre talking about the common law and equity here, you
have to remember that these are preferences and not rules. So
therefore, when it says that the common law leans in favour of joint
tenancies or equity leans in favour of tenancies in common, all its
saying is, if there is doubt or ambiguity or if it could go either way,
each system will take its own approach. Equity wins out in these
kinds of rows because, take a co-ownership situation where you
have D and E, say the common law finds that theyre joint tenants,
well equity finds that they are tenants in common. So whats the
consequence? It could mean that, say E dies, at common law D
benefits from survivorship; hes left as sole owner. But in equity e
will inherit; so all thats happened in equity is that D and e are now
owners of whatever the shares in the tenancy in common. The
dividing line between common law and equity hasnt been abolished
as we know, and the union of judicature hasnt put common law and
equitable rights on the same footing.
The easiest way to go about creating a tenancy in common is to say
so. And even if you dont say so explicitly, you could use words of
severance, which even the common law would pick up on and say
no, those words mean we cant apply our preference towards the
joint tenancy because the are indicative of something operating as
a distinct share. These words of severance included in equal
share, equally (Surtees v Surtees [1871]), or you could say to A, B
and C as co-owners in the following shares 50/25/25. If you use
language like that you are clearly talking about distinct shares and
therefore the common law will have to give up on its presumption
and apply or recognise a tenancy in common.
Equity leans towards tenancies in common, and it will apply this bias
in a number of situations. Again, equity has no choice if the deed
says you are joint tenants; equity cant do anything about that. But
if the situation is ambiguous, and even if there arent words of
severance used, equity could look at the circumstances and say that
they are such that the shares must have been intended to be
distinct shares.
1. Purchase money provided in unequal shares
The first situation where this bias by equity towards tenancies in
common is applied is where people bought property together with
private purchase money in unequal shares (OConnell v Harrison
[1927]). Equity would fasten on that and say well, the person who
provided the bigger share presumably didnt intend to benefit the
person who provided the smaller share. So in a situation where
there are no words of severance but the purchase money went in
unequal shares, equity will presume a tenancy in common. Now of
course even if you put in money in unequal shares youre perfectly
entitled to provide that it should be a joint tenancy. But what equity
was doing was picking up on the uncertainty. If the purchase money

was in equal shares and there is no other indication, equity may feel
that it is bound to find a joint tenancy.
2. Mortgage Loans
This is an old phenomenon. This would have been where people
acted as lenders in the 19th century before the regulation of the
financial sector, before money lenders had to be licensed. Some
people used to just literally lend money as an investment. You might
have 3 people getting together to lend money to a third party and
they would take a mortgage over that third partys property. If they
took the mortgages jointly, the question arose as to what happened
if one of them died. And it would be absurd if their estate was still
owed money by the borrower but they had no security because the
mortgage was held under a joint tenancy. And so if its a mortgage,
equity has cognisance to the commercial rationale of the
arrangement. And commercial arrangements arent about making
presents to other people. So in this situation, equity says, because
its commercial, because you were in it to make money, well
presume that the mortgage was taken as a tenancy in common.
3. Partnership Property
So also with partnership property, which Ive used as an example
already.
4. Land held for individual purposes
If you have people buying land together, but for individual purposes.
Say a dentist, an engineer and a solicitor know each other and
decide to buy a three story property in which to practice their
respective businesses, the dentist taking the ground floor, the
solicitor having an office on the first floor and the engineer uses the
top floor for all his design drawings. Now, theyre not dividing the
building up in the sense that theyre not saying each floor is
exclusive. What theyre saying is well use it between ourselves,
but well be co-owners. But because they have their own
commercial interests at heart, equity takes that as a signal that they
couldnt have intended to be joint tenants: Malayan Credit Ltd v Jack
Chia-MPH Ltd [1986] AC 549.
5. Other evidence of intention
Finally, and unsurprisingly, equity will take into account any other
evidence of intention that it should not be a joint tenancy and
should be a tenancy in common. Equity is much more responsive to
indications of intent than the common law. So thats the sum total of
the disparate approaches of equity and the common law to coownership: Twigg v Twigg [1933] I.R. 65
Severance of a Joint Tenancy
The next thing on the handout is severance of a joint tenancy.

Severance of a joint tenancy is a big thing because, as I mentioned


a few minutes, you can end co-ownership by effecting a partition
basically dividing the land up between the respective co-owners.
Youve cut the bond and you have nothing more to do with them in
terms of a land-owning relationship. Thats a partition and it ends
co-ownership. And you can do that whether its a joint tenancy or a
tenancy in common.
But where you have severance of joint tenancy, that is about
converting it into a tenancy in common. Now we know why you
would want to do it, youd want to do it because you want distinct
shares. You might have entered into the arrangement in your 20s
take the solicitor, dentist and engineer. And stupidly, because the
solicitor is thick as muck, he puts joint tenant all over the deed. 30
years later they still want to be co-owners, but theyre feeling their
age and they realise theyre not going to live forever and they might
have a family to look after when theyre gone. And the idea of
severance is to render the interests into distinct interests. Up until
now they were part of a composite, single ownership unit, but what
youre now saying is so that we can be tenants in common into the
future, we want to render the shares distinct. We dont want to
partition the property, we simply want to become tenants in
common. And that means severing separating them out as
owners of distinct shares. Logically you might think that they would
all get equal shares in the tenancy in common but that doesnt have
to be the case. One might have paid to get the property re-roofed
one year and they might agree to have that reflected. And that
would be by agreement. But if you have a severance that was
forced, the only way it would break up would be equally. Because
thats the only division you can have; if theres 3 of them, it is
divided up three ways. Because none of them before that had a
distinct share so the only answer was that it has to be divided up
equally.
A severance is something that you have to do while youre still alive.
You cant purport to effect a severance in your will. That would be
too late because the second you die the survivorship kicks in and
theres nothing for your will to do. So if youre a joint tenant and you
put such a clause in your will, it simply doesnt work, its a dead
letter because the second you die your right in respect of the land
evaporates.
Severance at Common Law
Theres a degree of technicality here. The common law took the
view that certain events would bring about the severance of a joint
tenancy. And it just picked on these events and said if these things
happen, a joint tenancy is severed. The simplest example of a
severance is where A and B are joint tenancy and each ends up with
a distinct, undivided half share. So the land isnt divided up, its just

the ownership thats divided up. The common law said that there
are two mechanisms by which this can occur, and what the common
law fastened on was the destruction of certain unities. We saw how
the four unities were essential to the creation of a joint tenancy.
There are two unities that cant be destroyed: possession because
if youve destroyed the unity of possession effectively what youve
done is effected a partition; youve carved the land up, not just
ownership and therefore its not co-owned land anymore. So if you
destroy unity of possession, theres no question of it being a
severance of a joint tenancy, its far more dramatic. You also cant
destroy the unity of time because its simply a historic fact. So once
the unity of time is established, it is always present.
The two unities that could be destroyed leading to severance are:
1. Destruction of unity of interest - subsequent acquisition of an
interest by a joint tenant.
2. Destruction of unity of title - inter vivos alienation by a joint
tenant of his interest to a third party.
So all you were left with were the unities of interest and title. And,
as youll see from the handout, you could destroy unity of interest
by one of the joint tenants acquiring a further additional ownership
interest in the land. This could happen where the interest held in a
joint tenancy was less than a fee simple and the person goes off and
buys an extra interest. That would destroy unity of interest. Or unity
of title. If a joint tenant purported to convey their interest to a third
party. That was possible because, say youve got X and Y as joint
tenants and Y conveys to Z. That means that X is left to Z and they
cant be joint tenants because the unity of title is gone. Xs title is
derived from whatever disposition created that joint tenancy, but
Zs title is derived from the later conveyance and therefore the unity
of title is gone. And in fact, this mechanism whereby you convey to
a third party had to be used even if you wanted to effect a
severance in your own favour. Say Y wanted to obtain a distinct
share in the land, the law didnt allow you to convey to yourself so
you had engage in some kind of bizarre mechanism whereby you
conveyed to Z who then conveyed back to you. And again, that
destroyed the unity of title because Y now claims title by virtue of a
different deed to X. You chose to do these things.
Before the 2009 Act, a severance could also occur where you had
joint tenants and one or other of them had a judgment mortgage
registered against their interest in the land. Judgment mortgages, as
I said in the context of registered land, are quite commonplace and
are becoming more so due to the economic climate. A judgment
mortgage is an involuntary transaction. Despite the use of the word
mortgage, it doesnt involve any consent on the part of the person
who is classed as the judgment mortgagor (the landowner). Its a
non-consensual transaction by definition. Why should your co-

operation be required in respect of something that is being used to


make you pay a debt that hitherto you have not paid or refused to
pay? The law has held that in a situation with joint tenants where
one of them was indebted, the effect of the judgment mortgage was
to convey the debtors interest to the judgment creditor. If you
subsequently paid the debt, the interest went back, but that didnt
put the joint tenancy back together again. There was a severance
because you had destroyed the unity of title and the subsequent
payment of the debt didnt change that. So judgment mortgages
severed joint tenancies. And that was important because many of
the tenancies they severed were in favour of husbands and wives.
The husband owed money and the wife didnt. He was sued, a
judgment mortgage was entered against the property, and the joint
tenancy, which was the vehicle by which they held the family home,
was severed.
The 2009 Act has a simple policy in respect of joint tenancies which
was as follows: the Oireachtas took the view that joint tenancies are
something that people establish with a particular intent and
therefore it is undesirable that joint tenancies could be torn up as
easily as the law allowed at the time. So the 2009 Act dealt with
that issue by providing that there is no more severance of joint
tenancies by judgment mortgage. Section 30(3) of the 2009 Act
provides that:
From the commencement of this Part, registration of a
judgment mortgage against the estate or interest in land of a
joint tenant does not sever the joint tenancy and if the joint
tenancy remains unsevered, the judgment mortgage is
extinguished upon the death of the judgment debtor.
What that means is that judgment mortgages against joint tenants
are not as effective as they used to be. Now, theyre still effective in
respect of section 31 of the 2009 Act, which I will come to shortly.
Section 31 still helps judgment mortgagees, but what section 30(3)
is saying is that this unintended and undesired severance which the
law allowed for up to 2009 is done away with. Thats the first
important point.
The next point is that sections 30(1) and (2) arent saying you cant
sever a joint tenancy, but they respect the intent that was there
when the joint tenancy was created. And so what the law says now
is, a joint tenancy is not severed without consent. You can no longer
go off and unilaterally effect a severance to suit yourself. You
entered into a joint tenancy with somebody and then you change
your mind and you want to sever it, and the old law allowed you to
do that you could convey it to somebody who would convey it back
to you, destroying the unity of title, and thereby making you a
tenant in common. This was the case even though your co-joint

tenant thought you were always going to be joint tenants and may
have entered into an agreement only on that basis. You were able to
set that at nought under the old law.
Section 30(1), (2) of the LCLRA 2009 now provides:
(1) From the commencement of this Part, any
a) conveyance, or contract for a conveyance, of land held in
joint tenancy, or
b) acquisition of another interest in such land, by a joint
tenant without the consent referred to in subsection (2) is
void both at law and in equity unless such consent is
dispensed with under section 31(2)(e).
(1)In subsection (1) consent means the prior consent in
writing of the other joint tenant or, where there are more
than one other, all the other joint tenants.
So in other words, severance between joint tenants is now a
consensual matter, it has to be agreed upon, and if it isnt, theres
no severance. You cant employ these techniques to destroy the
unities of interest or title without the consent. Now, the the courts
do have the power to dispense with consent if its appropriate to do
so, and it can do so, as well see, in the context of section 31. But
the requirement of consent provides an important safeguard. It
means that the form of co-ownership selected for these co-owners is
preserved unless they agree or unless the court intervenes.
Severance in Equity
Equity was always a little bit more flexible in allowing for severance
of a joint tenancy because it didnt like joint tenancies. It regarded
them as slightly unjust. It preferred the idea of split shares and
regarded them as being more equitable. And so equity didnt insist
on you having a conveyance or an acquisition by way of legal
document or legal instrument. It didnt insist that title should have
passed to a third party or that title to a further interest should have
vested in a joint tenant. It didnt require the thing to be completed
by deed. It would give effect to less than that because, of course,
equity regards as done that which ought to be done, equity looks at
substance rather than form.
Section 30(4) of the LCLRA 2009 says:
Nothing in this section affects the jurisdiction of the court to
find that all the joint tenants by mutual agreement or by their
conduct have severed the joint tenancy in equity.
So the equitable jurisdiction isnt affected. But what section 30 is
acknowledging and is in fact correct in this the equitable
jurisdiction was always based on the idea of something being

worked out amongst the joint tenants. Now of course equity would
recognise a severance in the same situations that the common law
would acquisition of a further interest or disposal of your interest
but it also recognised two further situations as giving rise to
severance:
1) Agreement between the joint tenants to hold as tenants in
common. Just an agreement; no deed, no formal document was
needed to be entered into whereby you all became tenants in
common at law. In equity just an agreement would be effective.
2) Any course of dealing indicating that the joint tenants were
treating their interests as constituting interests under a tenancy in
common. Even less than an agreement.
And that remains the law; those headings are still good. And theres
no reason why they shouldnt be, because they are consistent with
the policy of the 2009 Act, the policy being, if a severance is going
to occur, it has to be by consent, unless the court intervenes. So
that is the situation in relation to severance. Severance is now
controlled and is about consensus for the most part, subject to the
courts intervention.
Determination of Joint Tenancy/Tenancy in Common
The last thing we have to talk about in the context of co-ownership
is how it comes to an end. Naturally it is always open to people to
agree in respect of these things, but what were really interested in
is where there has to be a degree of compulsion. But lets just work
through the various headings.
1. Union in a sole tenant
That can happen where survivorship keeps operating until theres
only one joint tenant remaining. When it hits the last one there is no
more joint tenancy, there is no more co-ownership, its a property
owned by one person, no different to any other piece of land. And so
in that situation, co-ownership ends. It could also happen that one
co-owner may have bought everybody else out; they may have
been tenants in common, and there would have been no
survivorship, but you buy them out. Theres nothing wrong with
that. But thats all on the basis of agreement.
2. Partition
Rather than one co-owner buying everybody else out, they may
agree to divide up the property. Again there nothing at all wrong
with that. Sometimes you find one person taking a piece thats
possibly more valuable than the other, and there is sometimes
brought into in whats called consideration for the quality of
exchange, as it were. One party gets a piece thats worth 60% of
the overall value, with the other party getting the piece worth 40%,
plus some money. And if thats worked out by agreement, again its

fine.
3. Court Order
Section 31 of the LCLRA 2009 is entitled Court Orders and
provides:
(1)Any person having an estate or interest in land which is coowned whether at law or in equity may apply to the court for
an order under this section.
(2)An order under this section includes
(a) an order for partition of the land amongst the co-owners,
(b)an order for the taking of an account of incumbrances
affecting the land, if any, and the making of inquiries as to
the respective priorities of any such incumbrances,
(c) an order for sale of the land and distribution of the proceeds
of sale as the court directs,
(d)an order directing that accounting adjustments be made as
between the co-owners,
(e) an order dispensing with consent to severance of a joint
tenancy as required by section 30 where such consent is
being unreasonably withheld,
(f) such other order relating to the land as appears to the court
to be just and equitable in the circumstances of the case.
(1)In dealing with an application for an order under subsection (1)
the court may
(a) make an order with or without conditions or other
requirements attached to it, or
(b)dismiss the application without making any order, or
(c) combine more than one order under this section.
(4) In this section
(a) person having an estate or interest in land includes a
mortgagee or other secured creditor, a judgment mortgagee
or a trustee,
(b)accounting adjustments include
(i) payment of an occupation rent by a co-owner who has
enjoyed, or is continuing to enjoy, occupation of the land
to the exclusion of any other co-owner,
(ii) compensation to be paid by a co-owner to any other coowner who has incurred disproportionate expenditure in
respect of the land (including its repair or improvement),
(iii)
contributions by a co-owner to disproportionate
payments made by any other co-owner in respect of the
land (including payments in respect of charges, rates,
rents, taxes and other outgoings payable in respect of it),
(iv)
redistribution of rents and profits received by a coowner disproportionate to his or her interest in the land,
(v) any other adjustment necessary to achieve fairness
between the co-owners.

(5) Nothing in this section affects the jurisdiction of the court under
the Act of 1976, the Act of 1995 and the Act of 1996.
(6) The equitable jurisdiction of the court to make an order for
partition of land which is co-owned whether at law or in equity is
abolished.
A court order is where you have problems. And this is inevitable in
relation to co-ownership. It was recognised by the legislature as far
back as the 16th century that co-ownership did not have a happy
course and that co-owners didnt get on. And so in a piece of
legislation in 1592 called An Act for Joint Tenants, it was recognised
that the courts would partition land divide it up. And although the
Act was called An Act for Joint Tenants, it applied to tenants in
common as well. In the 19th century you had the Partition Acts of
1868-1876, and significantly they created a jurisdiction to order a
sale in lieu of partition. Because it was recognised that a partition
was often not a happy way of dealing with it because partition
involved dividing the property up. And thats fine if youve got a
field with road frontage running along it so you can divide it up so
that youve got two fields. But if its a house you cant really
partition it. In the 19th century you had a big debate as to who got
the chimney, because if you couldnt light a fire you would freeze.
And so it wasnt a practical way of dealing with the issue, and the
courts were given the power to order the sale of the property and
the division of the proceeds in lieu of partition. And the important
thing about saying the court has the power is that the courts power
is there to be invoked by one of the co-owners one co-owner can
complain about another. You had this legislation for a long time, and
although you had the 19th century reform, the reform was very
limited because it was about something instead of partition, which
was sale. And sale could be a messy solution, particularly if the
market wasnt buoyant. And of course, needless to say, sale was
never a solution for a co-owner individually, because all they could
sell was their interest, and nobody would want to buy it. When was
the last time you saw even in the boom for sale. Half share of
house with slightly mad person already living there. You wont see it
because theres no market for individual co-owners interests. People
dont buy into these situations because you dont know what youre
buying into. So the only way the law could deal with it was to sell, at
the discretion of the court. This was rather unsophisticated and a
sale could be very hard on somebody who was treating this property
as their home. That person might not be the source of the unrest
prompting the sale, but they would be unable to acquire as nice a
property out in the world with their share of money from the sale,
which would amount to a fraction of the value of the original
property they were living in.

So what you have to bear in mind when you look at section 31 is


that it is attempting to create a new order in relation to coownership. And as well see as were going through it, it attempts to
establish a little bit more balance, without necessarily going for the
nuclear option of a sale (which is still available).
And you can tie subsection (1) down to subsection (4) because
subsection (4) provides that in subsection (1), a person having an
estate or interest in land includes a mortgagee or other secured
creditor, a judgment mortgagee or a trustee. So judgment
mortgagees havent been completely hamstrung, they can have
recourse to this provision. So the bit in section 30(3) that said
theres no severance wasnt the end of the world.
What can you get on a section 31 application?
(a) Subsection 2(a) for a start says that an order under this
subsection includes an order for partition of the land of the coowners. So thats still there.
(a) An order for the taking of an account of incumbrances affecting
the land, if any, and the making of inquiries as to the respective
priorities of any such incumbrances. That can be important where
you have a sale because its working out who had a mortgage or
a charge against this land. So you may have to work out who gets
paid first out of the proceeds.
(a) An order for sale of the land and distribution of the proceeds of
sale as the court directs. It doesnt necessarily follow its going to
be in shares proportionate to the shares of the co-owners. And
were coming to an important point in a second and that does
relate to it.
(a) The accounting adjustments referred to are very important. These
represent a change in the law, because before the 2009 Act came
into force in respect of these issues, unity of possession meant
that a co-owner had a right to possession of the entire property.
And that remains the law. But because they were entitled to
possession they couldnt be excluded from possession, but nor
did they have to account for their possession. So say you had (to
use an example that you will see on many a problem question in
past papers) three brothers and the mother dies and leaves the
house to them as joint tenants. Two of the brothers are living on
the other side of the world in Australia, and the last brother in
Ireland gives up his rented accommodation and goes back to live
in the old family home. And as co-owner he has a full right to live
there. But the other two say well thats a bit hard on us, would
you not give us a bit of rent? And the brother would say I dont
have to give you rent, I have a right to live here. If you want to
live here youre more than welcome, Ill fluff up the pillows for

you if you want. You dont need an invitation from me because


you co-own this place. But Im not paying you rent. But of course
they have made lives elsewhere and would see it as unfair that
the one brother gets all the benefit of the property. It was as good
as the Ireland brother owning the property outright because they
werent there to cramp his style. That was the law, that was the
reality, you did not have to account to the others for your
occupation because your occupation was by virtue of your title as
a co-owner. But these accounting adjustment allow the court to
say well hang on a minute, theres a degree of inequity here or
its disproportionate because theres a greater benefit going to
somebody than somebody else. The greater benefit can arise in
a number of ways and some of it is wrong and wouldnt have
been allowed before the Act, but some of it, as in the example
Ive just described, would have to be taken into account. Section
(4) defines the accounting adjustments from section 2(d) that a
court can make in an order. Accounting adjustments include the
following:
Q payment of an occupation rent by a co-owner who has enjoyed
or is continuing to enjoy occupation of the land to the
exclusion of any other co-owner. So if youre de facto getting
sole occupation it may be fair to say that you need to pay a
little bit. 4(b)(i)
Q Compensation to be paid by a co-owner to any other co-owner
who has incurred disproportionate expenditure in respect of
the land (including its repair or improvement). Say all three
brothers were living under the same roof and the roof gets a
huge hole in it and one brother pays to have it repaired, it is
fair that the cost to repair should be shared. 4(b)(ii)
Q Contributions by a co-owner to disproportionate payments
made by any other co-owner in respect of the land (including
payments in respect of charges, rates, rents, taxes and other
outgoings payable in respect of it). Again, same principle. 4(b)
(iii)
Q Redistribution of rents and profits received by a co-owner
disproportionate to his or her interest in the land. In fact that
was always possible under the old law because you were only
entitled to receive a share of the rents and profits
commensurate with your share. You werent entitled to keep all
the rent if you were the one collecting it. 4(b)(iv)
Q Any other adjustment necessary to achieve fairness between
the co-owners. 4(b)(v)
And these accounting adjustments can occur as an independent
remedy or they can occur in the context of a sale. So when the
court is ordering the sale, it orders that the proceeds will not be
divided three ways because account needs to be taken of repairs
paid for or whatever.

(a) An order dispensing with consent to severance of a joint tenancy


as required by section 30 where such consent is being
unreasonably withheld. So section 31 can deal with a severance
situation, its not necessarily bringing the co-ownership to an
end. It can say youre allowed now become tenants in common,
because this individual is acting unreasonably in withholding
their consent.
(b)Such other order relating to the land as appears to the court to be
just and equitable in the circumstances of the case. Thats a kind
of a catch all provision, which is very important because it means
that court can, depending on the facts before it, tailor a very
specific and very discrete remedy peculiar to the circumstances
of the parties.
Subsection 3 says that in dealing with an application for an order
under subsection (1) the court may
(a) make an order with or without conditions or other
requirements attached to it, or
(b)dismiss the application without making any order, or
(c) combine more than one order under this section.
So the court, if its asked for one thing, may say ah no, we may do
it, but well add conditions, or were going to combine it with other
things. So the parties cant operate as if this is a menu, or the party
going to court cant say, well I want something off the menu but
Im not touching the other things. The court has the power to
engineer a solution.
Subsection 4 defines terms in other subsections and is thus dealt
with under such sections.
Subsection 5 says that nothing in this section affects the jurisdiction
of the court under the Act of 1976, the Act of 1995 and the Act of
1996. The Act of 1976 is the Family Home Protection Act and the Act
of 1995 is the Family Law Act and the Act of 1996 is the Family Law
(Divorce ) Act. So those family law statutes have their own particular
code for dealing with co-ownership between spouses.
And then finally, to copperfasten the point, subsection 6 provides
that the equitable jurisdiction that existed to order partition is gone
and its now a matter of statute law. So thats the way disputes
relating to co-ownership are dealt with. Theres one other point that
I should mention which is, where you have co-ownership, often in a
commercial context, the most sensible way to avoid all of these
problems is to have whats called a co-ownership agreement. Now
that can be a very simple way of dealing with it. In other words you
acknowledge from the outset the risk that the parties might fall out,
or even that circumstances may simply change and cause the
arrangement to lose its efficacy, and enter into an agreement that

will say heres the way we are going to organise things if that
happens. It might provide that one party have an option to buy out
the other, for example. This is know as a put and call option. A put
and call option is where you have the option to put your interest to
somebody if such an option exists you can make someone to buy
you out by putting your interest to them and that is a contract, you
can get specific performance of that. Or the other type of option is a
call, where you can call on you to sell to me. So a well regulated coownership agreement can exist through such an agreement. But
these generally operate in a commercial field; you dont find them in
husband/wife scenarios.