This position was changed by the statute of queen

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This position was changed by the Statute of Queen Anne – provided an action for account where the co- owner has received “more than his just share”. Henderson v Eason (1851) Held: The provision only applied where a third party had paid the money. It did not apply where the payment was a result of the co-owner’s own exertions. Baron Park: Industrial fruits that would not have existed but for the co- owner’s industry and capital (at own risk). NB: Equitable accounting was only ever available as part of a proceeding for partition. The Statute of Anne was repealed in Victoria in 1980. In 1988 PLA s28(a) was inserted to allow for an accounting of rents and profits. S234(a) facilitates an application for an “accounting” by cross-referencing s28(a) by VCAT. You can only claim the actual amounts received – you cannot claim what might have been received. VCAT may order any order that it thinks fit to ensure that it is just and fair s228(1). 15
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Claims made during the co-ownership (when not seeking to end it) you may only claim for rents and profits A co-owner can: Sell it. Gift it. Declare that it is held in trust. Can lease the land. o But has a strange affect of a joint tenancy. Adverse possession – LAA (1958) S14(4) – allows an adverse possession to occur by one co-owner against the interests of the other(s). Wills v Will (2003) Facts: George and Elma own a property in Jamaica. E left G behind in the house. G lease out the flat. G kept the rental income to himself although they were joint tenants. G who had since remarried, died. E claimed that she was the sole surviving joint tenant. But G’s second wife said that the property was part of her husband’s deceased estate. Held: At common law, possession by one co-owner is possession by all co- owners. This limitations act provision affected a change to the common law so that possession by one is not possession by law. E did not set foot in the house after 1976. G had acted in all these years as if he were the sole owner. If you possess with an intent that you are acting as an owner you are in exclusive possession. Can mortgage the land. o Some of these have consequences for the nature of the co- ownership. o Although you can mortgage your interest, you are unlikely to find a bank In an exam situation: 1. Analyse the co-ownership at the start. 2. What is the situation at law? JT? TIC? 3. In equity? JT? TIC? 4. Then go through step by step and ask whether there is anything thrown in that sounds like it could be a severance. Severance is when a joint tenancy is suddenly converted into a tenancy in common. Severance inter vivos by act of JTS o Williams v Hensman Unilateral act – Agreement Course of dealing Severance by operation of law o Bankruptcy 16
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o Homicide o Court order/ VCAT Pt IV PLA order Severance converts a joint tenancy to a tenancy in common visa vie that particular share. (Bradbrook 456) Williams v Hensman (1861) Sir Paige Wood: A JT can be severed in 3 ways.
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