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3 when lessor dies the lease continues and the rent

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3. When lessor dies, the lease continues and the rent is due to the lessor’s estate 4. When lease expires, the joint tenancy resumes, principle of survivorship operates and H takes as sole owner. POSITION BETWEEN THE LESSEE AND THE NON-LEASING JOINT TENANT 1. Scholl J said that during the lease, H cannot exclude the Ungers from any part of the property. As J’s tenants, they are exercising J’s right as co-owner to possession. Nor can the Ungers exclude H. 2. Same applies if H also grants a lease to other parties. SEVERANCE BY MERGER 1. Assume A has a life estate, B and C an interest in remainder as joint tenants. 2. A transfers her life estate to B. 3. A’s life estate passes to B and merges with B’s interest in remainder. 4. B and C now hold as tenants in common. SEVERANCE BY MUTUAL AGREEMENT 1. Needs to be an express agreement to sever 2. Agreement can be written or oral 3. It does not have to be specifically enforceable. 4. Not necessary to have agreement as to precise allocation of the proceeds of sale. 5. Severance can be effective immediately even if the sale and division of the proceeds are subject to a contingency that might or might not occur: Public Trustee v Pfeiffle SEVERANCE BY COURSE OF DEALING 15
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16 1. ALL ABOUT CONDUCT 2. No need for express agreement to sever 3. Parties conduct their dealings on the assumption that they hold distinct shares. 4. In Williams v Hensman , severance resulted from the execution of documents by co- owners indicating that their shares in a common fund were to be treated as separate by the manner of payment. SEVERANCE OTHER THAN BY AN ACT OF A JT 1. BANKRUPTCY – vests in the trustee in bankruptcy in equity. Will be severed at law when the trustee becomes the RP 2. HOMICIDE – shouldn’t be able to benefit for your own crime. At LAW, murderer gets the interest. BUT At EQUITY, murderer holds interest on trust for murdered person, which then goes to the estate of murdered person. EQUITY wins!!! 3. COURT ORDER – can’t just order that a JT be severed. BUT, can make orders that are INCONSISTENT with a JT. Family Law Act that divides up the assets. If mortgagor defaults, bank can sell their “share”, which is counter to a JT. Court orders you get a certain amount of shares in the property. TERMINATION OF CO-OWNERSHIP BY COURT ORDER 1. Spouses can seek order from Family court under s 79 Family Law Act 1975 (Cth) 2. ‘Domestic partners’ can seek a court order under Property Law Act, Part IX (see topic 1, RG p 9) 3. In default of those provisions, co-owners can apply to Vic Civil and Administrative Tribunal (VCAT) under Property Law Act, Part IV, Div 2. 2.6 PROCEEDINGS FOR DIVISION AND SALE UNDER PLA PART 4, DIV 2 1. S 225: A co-owner of land or goods may apply to VCAT for an order for sale and/or the physical division of land and goods among the co-owners. 2.
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3 When lessor dies the lease continues and the rent is due...

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