PROPERTY LAW – “SEMINAR” 6.1

PROPERTY LAW – “SEMINAR” 6.1

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PROPERTY LAW – “SEMINAR” 6.1 EASEMENTS AND CO-OWNERSHIP Co-Ownership – Shared rights in relation to land, such as a bank holding mortgage in the land (thus holding an interest in the land), or holding part of a dwelling. 2 Most common forms of shared ownership are: o Joint tenancy – Joint ownership o Tenancies in common – Co-ownership Even if we use the word tenancy, it is still a freehold arrangement, not a leasehold arrangement. 2 main differences o Joint tenancies must be identical in every respect - Tenancies in common don’t have to be. Eg: For a joint tenancy, both parties must have complete ownership of the property, but for a tenancy in common, one party can have 40% interest and another having 60% interest, thus can divide the interest into various shares with a tenancy in common. Certificates of title will generally note the interest of each co-tenant. o Survivorship – When joint tenant dies their interest ceases and the surviving tenant keeps right for themselves – The tenant in common’s interest continues on when one dies, where the interest of the decreased co-owner can be transferred by will. Joint tenancy – Two vital characteristics (unity and Jus Accrescendi) to establish a joint tenancy: Joint tenancy will only exist if the four unities exist: o Possession – This is required for both joint tenancies and tenants in common. Entitled to possession of the whole of the land, so no tenant can exclusively have the right to possess any particular part completely by themselves. If one co-tenant is claiming exclusive possession to part of the property to the exclusion of the other co-party, no unity of possession exists, thus neither joint tenancy nor a tenants in common arrangement exists. o Shared interest – Interests of all joint tenants to the nature, extent and duration must be identical in their legal nature (eg: All co-owners hold a freehold estate for 10 years).
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Even if only one of the joint tenants had knowledge of the joint tenancy arrangements, it will still apply to both parties. o Title from the same source – All must derive their shared right from the same source (eg: Same deed or same times of enter if adversely possessing). o Time – All interests of the joint tenants must be created at the same time, not to a class of persons not closed at time of creation. An exception to this is where the joint tenants are trustees, holding the land as joint tenants in trust for someone else. In that situation, others can be put of the joint tenancy at different points in time because of the land being held in trust by those joint tenants. o To satisfy unities for tenants in common, only have to satisfy unity of possession. Jus Accrescendi (Survivorship) – Upon the death of one of the joint tenants, the land
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This note was uploaded on 09/27/2011 for the course FINANCE 1001 taught by Professor Profassorted during the Three '11 term at University of Adelaide.

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PROPERTY LAW – “SEMINAR” 6.1

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