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Tenants in common share the same interest in distinct

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Tenants in common share the same interest in distinct [aliquot] shares JOINT TENANCY REQUIRES FOUR UNITIES (Unity of possession) 1. Possession . Each co-owner is entitled to possession of the whole land (ALSO required for tenancy at common) 2. Interest . Each has an interest of the same nature, extent and duration. IE, all have a freehold interest, or a leasehold interest. So, if have a freehold, but other person has lease, NOT a JT!!! 3. Title . Each has acquired title under the same instrument or act. This “instrument” can be a document, or will etc. So, if both AP’s, will be getting the land together as JT’s. 4. Time . The interests have to vest at the same time **SO, ask these four questions of unity, THEN ask if there’s WORDS OF SEVERANCE! ** WORDS OF SEVERANCE 1. If instrument that creates the co-ownership uses words of severance, the parties will be tenants in common, not joint tenants IE, something saying “equally” is a split of shares. 2. Words of severance indicate intention that transferees will have distinct shares, eg ‘among’, ‘between A and B’, ‘ to A and B respectively’, ‘to A and B share and share alike’ 3. So, to create a JT, just say “A and B have title”, as ANY slight intention to split shares suggests no JT!!! JOINT TENANTS – RIGHT OF SURVIVORSHIP (specific to JT) 1. No joint tenant has a distinct [aliquot] share 2. Interest of joint tenant cannot leave his or her interest to somebody by will. 3. The interest of a joint tenant does not form part of his/her estate on death but accrues to the surviving joint tenant(s). 4. This is the ius accrescendi – or right of survivorship 9
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10 5. BUT, what if all the JT’s die in a car crash together? WELL, s. 184 of the PLA says that the oldest one dies first, so therefore the youngest person’s will is how we determine what happens to the land. WHERE ORDER OF JTS’ DEATHS IS UNKNOWN 1. Statutory presumption as to the order of deaths, for purposes of the operation of survivorship. 2. PLA, s 184 Where two or more persons have died in circumstances rendering it uncertain which survived, such deaths shall be presumed to have occurred in order of seniority and the younger is deemed to have survived the elder. **JT’s CAN BE CHANGED!!!** TENANTS IN COMMON 1. Unlike joint tenants, tenants in common do have a distinct share in the property SO, you could have 1 RP, BUT co-owners at equity, as A pays 75%, B 25% but A is the RP. ALSO, if have a JT at law, in equity it could be T in C, if A has 75%, B 25%. EQUITY would win. 2. Their shares do not correspond to any physical division of the property 3. The principle of survivorship does not operate 4. They can sell, give away or devise their shares. On death, their share forms par tof their estate. VICTORIAN LAW’S PREFERENCE FOR JOINT TENANCY 1. Common law presumption that co-owners intended to hold as joint tenants where: 4 unities are present No words of severance used 2. Note two provisions of TLA apply CL presumption: S 30(2) – where 2 or more persons are registered as joint tenants they are deemed to be entitled thereto as joint tenants.
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