Lecture 3 tutorial: Feedback

common law (old) assume joint tenants

now with enactment of CAPO, assume is tenant in common
1. At law, their relationship are as follows: (Cap. 219 Conveyancing and Property Ordinance)

1.1. In the absence of any word of severance, the common law presumes that A, B
and C are joint tenants and holding the whole property together. However, with
the enactment of the CAPO, the presumption now is tenants in common: s 9
CAPO.
1.2. 1.2 to 1.3 all tenants in common. The words equally, in equal shares are words
of serverance. In such a case, each of A, B and C holds one-third of the
property. word of serverance / separate = "equally", "equal shares"
separate means not joint tenants >> tenant in common Q2) if A sold 1/3 of share to Z
-B and C hold 2/3 as joint tenant
-Z purchase with different time as B and C, so Z holds 1/3 as tenant in common

2. In such a case, Z holds one-third as a tenant in common and B and C will hold
two-thirds as joint tenants. A no longer holds any interest in the property.

3. To begin with, the answer to question 2 still holds true, except that Z is replaced
Q2) if A sold 1/3 of share to B
by B. -B and C hold 2/3 as joint tenant
-B purchase with different time, so B holds 1/3 as tenant in common
3.1. as such, B holds one-third as a tenant in common, and B and C hold two-thirds
as joint tenants.
3.2. when C dies, the property vests with B automatically by virtue of the doctrine of
the right of survivorship. B then becomes the owner of the whole property.

lease to B and C, they are just tenants

4. As regard this question: sell to B and C, we are tenants in common

4.1. B and C are your tenants and you remain in possession of all the houses.
4.2. you, B and C are tenants in common of the whole land and the whole building
4.2.1. each of you holds one-third of the undivided share, which, conceptually,
representing the whole piece of land, and with the exclusive rights to use the
flat.
4.2.2. no, you can’t, as the relationship is one of tenancy in common, by virtue of the
unity of possession, B can use the building in whatever manner he likes.
4.2.2) Cannot sue B for using common area, as B is co-owner as "tenants in common"
4.2.3. yes, reason is the same as 4.2.2. due to Unity of possession, he have the right to use the common area
4.2.3) Can sue me for using flats of B and C without their consents --due to Unity of possession

4.2.4. the deed of mutual covenant. DMC solve the arise disruption (4.2.2) and privacy issue (4.2.3)
DMC define the exclusive possession area and common area
4.2.4.1. In the deed, it makes clear that each of the tenants in common agree with one
another that each of them shall have exclusive use of their flats. exclusive = one and only
4.2.4.2. the deed also mentions clearly the parts of undivided shares owned by each
of the owners of the flats.
4.2.5. they own pieces of air, however, the parts of the undivided share held by them
is regarded as land under s 2 of CAPO (Cap 219).

1
 Company limited vs Multi-storey building (land)
Difference:
- shareholder VS co-owners
- Undivided shares: company asset/capital VS land/common areas
Similar
- Tenants in common - unity of possession
(shareholder hold the company asset)
(co-owners hold the undivided share of land)
-Both have different acquisition time, tenure, interest, title
(Shareholder purchase different shares at different time)
(Co-owners purchase different flat at different time)

5. If you view the company’s capital or assets as an undivided share, then what the
shareholders hold can be likened to the parts of the undivided share of the land,
and the shareholders hold the assets as tenants in common.

6.
Trust = 信托
Trustee = 受托人 (board of directors)
Settlor = 委托人 (shareholders)
Beneficiary = 受益人 (shareholders)
The similar legal device is trust. The board of directors may be likened to be the
trustees and the shareholders may be likened to be the beneficiaries. In a trust,
one person transfers his properties to the trustees who may form a committee of
trustees for the management of properties for the benefit of either that person or
some other persons. Under the trust, the latter are the beneficiaries. The essence 精髓

of a trust lies in the separation of the title and the beneficial enjoyment of the trust
properties between the trustees and the beneficiaries.

7. Trust. A may transfer the properties to B and C as co-owners holding the

properties for the beneficial enjoyment of A’s children. It is certainly better for B
and C hold the properties as joint tenants, not as tenants in common. The reason
being that if B and C were to hold the properties as tenants in common, after B or
C dies, B or C’s shares in the properties would be transferred to the estate of B or
C, i.e., devolved on those succeed B or C upon his death, which would cause
inconvenience for, among others, the new trustees might not be able to co-operate
with the existing one and make it difficult for decisions for managing the
properties to be made, which frustrates the wish of A.

TRUST Joint tenants

A as settlor - right of survivorship
B and C as trustee - when B dies, his shares in properties transfer to C automatically
A's children as beneficiary - C can fulfill A's will

-help to manage A's properties for Tenants in common

beneficial enjoyment of children - when B dies, his shares in properties transfer to the estate of B (those succeed 接替 B upon his death/ B's will)
- inconvenience as new trustee might not cooperate with C --> difficult to make decision for managing A's properties