IntroductionThe last day I touched upon co-ownership when speaking about registration of title. We’ve seen already that on many occasions people want to divide ownership of land up into consecutive interests – A gets a life estate, then B gets a life estate, then C gets a fee tail (which we don’t have anymore), then a fee simple, and it’s one after the other. But co-ownership doesn’t involve consecutive interest, instead it involves people enjoying land concurrently. And it’s not the scenario that I outlined at the start of the year where you have one person who owns the land and another person who has a right of way or a restrictive covenant or a lease. While those rights may be exercised harmoniously with the rights of the owner, they are different rights. Co-ownership involves people having the same, concurrent rights of ownership. Together they make up an ownership unit. And of course this is extremely commonplace. The vast majority of residential properties in the country occupied by married or co-habiting couples are co-owned land. The old phenomenon where the property was put into the husband’s name has gradually been worn away. And it’s not confined to married couples, it can apply to anybody. For example, sometimes a person makes a will and leaves a property to their children as a group. Another common example is a partnership of solicitors or other professionals. The partners own the property together. So co-ownership is not something that is simply of academic or passing interest, is highly relevant.

Having said that, the problem with co-ownership is, while it’s fine when everybody’s getting on together, the nature of the human condition is that people fall out. That’s where co-ownership often runs aground. Most divorce disputes can be sorted out in a family law context. Outside of family law, sometimes co-owners fall out because a partnership goes wrong but usually that is taken care of because the partnership agreement will have a dispute resolution mechanism within it. But where you often find a problem is where you have siblings. Because siblings have a great record for hating each other in money matters. And the terrible thing in sibling situations is that sometimes the co-ownership was effectively dropped onto them; instead of having the sense of dividing the estate up so that they didn’t have to have anything to do with one another, they are left as co-owners, which causes all sorts of problems.

So the law has to provide for co-ownership because it is needed – the law responds to consumer demand – but also has to provide the remedy to sort out problems that arise. Really that’s the sum total of the topic.

We have two forms of co-ownership that operate: joint tenancies and tenancies in common. As I indicated last week, the word ‘tenancy’ is not to be confused with leasehold arrangements. Of course you can have a co-owned lease: if a couple bought an apartment it would be held under a long lease. But tenancy here does not confine the context to the leasehold sphere. Here, tenancy means holding. People holding land in a particular way, whether it’s freehold or leasehold. Joint tenancies and tenancies in common have fundamentally different characteristics and requirements.

Joint Tenancy

Right of SurvivorshipThe joint tenancy is a much more sophisticated mechanism, but it has advantages and disadvantages, which don’t appear with the tenancy in common. You have to make a choice, really, when you’re setting out on the road of co-ownership – which arrangement suits you better. A joint tenancy has one obvious advantage over a tenancy in common and that is that a joint tenancy is governed by a concept called survivorship. Survivorship is present with joint tenancies, it’s not present with tenancies in common. Say you have three co-owners – A, B and C. With a joint tenancy, they make up an ownership unit, but effectively it’s a single unit of ownership. They do not have distinct shares, and that’s critical. With a tenancy in common, distinct shares are possible. A could own 50% with B and C owning 25% each. Now, when you’re talking about co-ownership, you never talk about shares as entitling you to a piece of the land; you can’t mark off a portion for yourself. That doesn’t work with co-ownership, because that’s what’s called a partition. If you have an arrangement between co-owners whereby they divide the land up so that each has exclusivity in respect of a piece, there is no more co-ownership. And as we will see, that’s one way you can bring an end to co-ownership – where the parties either agree to do this or go to court to have this done. So if you don’t want to be a co-owner anymore, one of the solutions is to partition. But while co-ownership subsists, you have no such entitlement to appropriate or commandeer a part of the land because each has an equal right to the whole thing. And that applies with both joint tenancies and tenancies in common. The only thing that the courts do is lay down basic rules of decency. So you can’t walk into the bathroom when someone is using it. But other than that one has an entitlement to possession of the entire property, and the size of the shares in this context would really only be of relevance say if the property yielded a rent. In that case, each would be entitled to a sum proportional to the size of their share.

So in a tenancy in common you call these distinct, but undivided shares. They’re undivided because there’s no partition. If they became divided shares there would be no co-ownership. But with a joint tenancy there is no distinct share at all. With a joint tenancy, the owners are, in a metaphorical sense, one person, one entity. Therefore, none of them can have more than the other – you can’t have more joint tenancy than the others.

A further consequence of that is, if one dies, the only consequence is that the others are left in ownership. The others are the survivors. And you have to be careful about the language and people are sloppy about the language. If A dies, B and C don’t inherit. Nobody inherits anything that A had in respect of the joint tenancy because nothing passes. All that happens is the ownership unit is left with two members. They’re not given anything, they don’t depend on A’s will, they don’t depend on intestacy, they’re simply left as the unit. The unit now comprises 2 instead of 3. The right of survivorship operates in favour of them and it will keep happening until you’re left with one. And the Succession Act 1965 makes that very clear. Nothing passes into your estate and the beneficiaries under your will can’t turn up and complain.

On the other hand, with a tenancy in common, this distinct piece of property

does not pass to your fellow co-owners. When you die, your share can pass into your estate. So the 25% that you owned could then be left to your family or whatever. It could be divided up between 4 children so that each gets 1/16. And this is the thing that I was talking about last week about why the registration of title system prefers joint tenancy – you can see already the fragmentation of ownership. Fragmentation causes problems when you need to deal with the land because you have to account for all the shares, and if you haven’t accounted for all the shares you don’t have a good title; you can’t certify it to a bank and you can’t borrow against it. And the reason is that each co-owner has an equal right to possession; majority rule doesn’t work here. You may own 15/16, but if another person owns 1/16, you can’t kick them out. With joint tenancies on the other hand, the pool is dropping in number so it’s only going to get simpler to deal with the property. And that is a fundamental difference between the two. The right of survivorship only applies with joint tenancies.

And that factor is what should be what really should inform the decision as to whether to opt for a joint tenancy or a tenancy in common. Joint tenancies are often preferred by married couples or co-habiting couples because the understanding is that when one dies the other should get it all. Tenancies in common, on the other hand, are more suitable to an arrangement where you’re attitude is that you don’t want a survivorship to benefit the co-owner; you want to keep what you brought in. So for example, if you had 5 people setting up in practise as solicitors, each of them is going to say ‘I’m not signing up to a joint tenancy because I’ve got a wife and children dependent on me that I have to provide for when I’m gone.’ And so they’d sign up for a tenancy in common.

The Four UnitiesSo what type of co-ownership you use really depends on what situation you’re trying to cater for. And unfortunately over the years, litigation has emerged simply because people aren’t clear in their intentions and don’t specify what type of ownership they want. Sometimes you’re spared that enquiry as to which type you’re dealing with because joint tenancies have a number of requirements which, if absent, don’t allow you to have a joint tenancy. And these requirements are called the Four Unities:1. Possession2. Interest3. Title4. Time

1. Possession Possession we can deal with very quickly because we’ve already looked at it. Possession is a unity of both forms of co-ownership. Whether it’s joint tenancy or tenancy in common, there has to be unity of possession. Everybody within the co-ownership has an equal right to possession of the entire. And if it’s not there it can’t be a joint tenancy and it can’t be a tenancy in common – you’ve got a partition situation, a division of property into exclusive bits.

2. InterestInterest means each of the joint tenants must have the same proprietary interest.

So you couldn’t have one with the fee simple and another with the life estate.

3. TitleThe must all hold under the same disposition. They must have all inherited pursuant to the provisions of the same will or they must have all acquired the property pursuant to the same deed of conveyance. There’s no unity of title with different conveyances from different people.

4. TimeTime means that all of their interests must be vested at exactly the same time. Now, equity has made a slight exception in respect of that where you had children qualifying for ownership. This was the old family settlement sort of situation. The property would go to the children, but the children of course would be born at different times. They couldn’t all be born at the same time and in O’Hea v Slattery [1895] it was held that doesn’t prevent the children from having a joint tenancy in equity; they enter the class (being a child) at different times but equity relaxes the rule slightly.

Tenancy in Common Those unities must be present with a joint tenancy. Tenancy in common is a different kettle of fish. You only have to have:a) Unity of possessionb)Distinct undivided shares in a tenancy in common.

Creation of Joint Tenancy/Tenancy in Common That brings us then to the question of how do you know what you’ve created. The simple answer is that you shouldn’t even have to ask that question if you’re anywhere close to competent. Because if you’re trying to create one or the other you should be able to articulate it in the document. It’s only when people are careless that you have to work it out. With registered land (which will represent all of the land in the country eventually), as we’ve seen, the Registration of Title Act 1964 saves you from that problem because it creates a presumption that when two or more people are registered together as co-owners, they are joint tenants. That is helpful and removes some of the uncertainty, but what happens if you’re still operating in the unregistered system and the documents that you’re dealing with don’t contain sufficient indication? Well you then have tension that operates in the law of co-ownership, one of these classic situations where equity and common law go their separate ways. Equity favours tenancies in common because it likes the fairness of people having distinct shares. It doesn’t like the idea that you may have chipped in but subsequently lose out. Because if you die as a joint tenant there’s nothing for your successors. Survivorship operates and there’s nothing for your estate. Equity likes the idea that you have distinct shares because your estate benefits. Even if you didn’t mention it in your will, it will

pass on intestacy. There’s a hint already of the sort of litigation you get: one person dies and one party asserts that they were a joint tenant and that survivorship thus operates, and the other is asserting that he was a tenant in common because they are the successors, the beneficiaries under a will.

But the common law, which likes tidiness, favours joint tenancies. It likes the idea of the pool of people narrowing down. That’s the modern explanation as to why the common law favours joint tenancies but there’s in fact a feudal explanation: the common law liked the idea that you’d have a tapering number because it didn’t like the idea of having multiple tenants in respect of a given piece of land – multiple feudal tenants. Because it would mean that the lord would have to keep chasing lots of people for feudal dues, instead of one person. So the common law from the get-go favoured joint tenancies. And in modern times its stance is justified in terms of the tidiness or order it brings to the title.

But when you’re talking about the common law and equity here, you have to remember that these are preferences and not rules. So therefore, when it says that the common law leans in favour of joint tenancies or equity leans in favour of tenancies in common, all it’s saying is, if there is doubt or ambiguity or if it could go either way, each system will take its own approach. Equity wins out in these kinds of rows because, take a co-ownership situation where you have D and E, say the common law finds that they’re joint tenants, well equity finds that they are tenants in common. So what’s the consequence? It could mean that, say E dies, at common law D benefits from survivorship; he’s left as sole owner. But in equity e will inherit; so all that’s happened in equity is that D and e are now owners of whatever the shares in the tenancy in common. The dividing line between common law and equity hasn’t been abolished as we know, and the union of judicature hasn’t put common law and equitable rights on the same footing.

The easiest way to go about creating a tenancy in common is to say so. And even if you don’t say so explicitly, you could use words of severance, which even the common law would pick up on and say ‘no, those words mean we can’t apply our preference towards the joint tenancy because the are indicative of something operating as a distinct share.’ These words of severance included ‘in equal share’, ‘equally’ (Surtees v Surtees [1871]), or you could say ‘to A, B and C as co-owners in the following shares 50/25/25’. If you use language like that you are clearly talking about distinct shares and therefore the common law will have to give up on its presumption and apply or recognise a tenancy in common.

Equity leans towards tenancies in common, and it will apply this bias in a number of situations. Again, equity has no choice if the deed says you are joint tenants; equity can’t do anything about that. But if the situation is ambiguous, and even if there aren’t words of severance used, equity could look at the circumstances and say that they are such that the shares must have been intended to be distinct shares.

1. Purchase money provided in unequal sharesThe first situation where this bias by equity towards tenancies in common is

applied is where people bought property together with private purchase money in unequal shares (O’Connell v Harrison [1927]). Equity would fasten on that and say ‘well, the person who provided the bigger share presumably didn’t intend to benefit the person who provided the smaller share.’ So in a situation where there are no words of severance but the purchase money went in unequal shares, equity will presume a tenancy in common. Now of course even if you put in money in unequal shares you’re perfectly entitled to provide that it should be a joint tenancy. But what equity was doing was picking up on the uncertainty. If the purchase money was in equal shares and there is no other indication, equity may feel that it is bound to find a joint tenancy.

2. Mortgage LoansThis is an old phenomenon. This would have been where people acted as lenders in the 19th century before the regulation of the financial sector, before money lenders had to be licensed. Some people used to just literally lend money as an investment. You might have 3 people getting together to lend money to a third party and they would take a mortgage over that third party’s property. If they took the mortgages jointly, the question arose as to what happened if one of them died. And it would be absurd if their estate was still owed money by the borrower but they had no security because the mortgage was held under a joint tenancy. And so if it’s a mortgage, equity has cognisance to the commercial rationale of the arrangement. And commercial arrangements aren’t about making presents to other people. So in this situation, equity says, because it’s commercial, because you were in it to make money, we’ll presume that the mortgage was taken as a tenancy in common.

3. Partnership PropertySo also with partnership property, which I’ve used as an example already.

4. Land held for individual purposesIf you have people buying land together, but for individual purposes. Say a dentist, an engineer and a solicitor know each other and decide to buy a three story property in which to practice their respective businesses, the dentist taking the ground floor, the solicitor having an office on the first floor and the engineer uses the top floor for all his design drawings. Now, they’re not dividing the building up in the sense that they’re not saying each floor is exclusive. What they’re saying is ‘we’ll use it between ourselves, but we’ll be co-owners.’ But because they have their own commercial interests at heart, equity takes that as a signal that they couldn’t have intended to be joint tenants: Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549.

5. Other evidence of intention Finally, and unsurprisingly, equity will take into account any other evidence of intention that it should not be a joint tenancy and should be a tenancy in common. Equity is much more responsive to indications of intent than the common law. So that’s the sum total of the disparate approaches of equity and the common law to co-ownership: Twigg v Twigg [1933] I.R. 65

Severance of a Joint TenancyThe next thing on the handout is severance of a joint tenancy. Severance of a joint tenancy is a big thing because, as I mentioned a few minutes, you can end co-ownership by effecting a partition – basically dividing the land up between the respective co-owners. You’ve cut the bond and you have nothing more to do with them in terms of a land-owning relationship. That’s a partition and it ends co-ownership. And you can do that whether it’s a joint tenancy or a tenancy in common.

But where you have severance of joint tenancy, that is about converting it into a tenancy in common. Now we know why you would want to do it, you’d want to do it because you want distinct shares. You might have entered into the arrangement in your 20’s – take the solicitor, dentist and engineer. And stupidly, because the solicitor is thick as muck, he puts joint tenant all over the deed. 30 years later they still want to be co-owners, but they’re feeling their age and they realise they’re not going to live forever and they might have a family to look after when they’re gone. And the idea of severance is to render the interests into distinct interests. Up until now they were part of a composite, single ownership unit, but what you’re now saying is ‘so that we can be tenants in common into the future, we want to render the shares distinct. We don’t want to partition the property, we simply want to become tenants in common.’ And that means severing – separating them out as owners of distinct shares. Logically you might think that they would all get equal shares in the tenancy in common but that doesn’t have to be the case. One might have paid to get the property re-roofed one year and they might agree to have that reflected. And that would be by agreement. But if you have a severance that was forced, the only way it would break up would be equally. Because that’s the only division you can have; if there’s 3 of them, it is divided up three ways. Because none of them before that had a distinct share so the only answer was that it has to be divided up equally.

A severance is something that you have to do while you’re still alive. You can’t purport to effect a severance in your will. That would be too late because the second you die the survivorship kicks in and there’s nothing for your will to do. So if you’re a joint tenant and you put such a clause in your will, it simply doesn’t work, it’s a dead letter because the second you die your right in respect of the land evaporates.

Severance at Common LawThere’s a degree of technicality here. The common law took the view that certain events would bring about the severance of a joint tenancy. And it just picked on these events and said ‘if these things happen, a joint tenancy is severed.’ The simplest example of a severance is where A and B are joint tenancy and each ends up with a distinct, undivided half share. So the land isn’t divided up, it’s just the ownership that’s divided up. The common law said that there are two mechanisms by which this can occur, and what the common law fastened on was the destruction of certain unities. We saw how the four unities were essential to the creation of a joint tenancy. There are two unities that can’t be destroyed: possession – because if you’ve destroyed the unity of possession effectively what you’ve done is effected a partition; you’ve carved the land up, not just ownership

and therefore it’s not co-owned land anymore. So if you destroy unity of possession, there’s no question of it being a severance of a joint tenancy, it’s far more dramatic. You also can’t destroy the unity of time because it’s simply a historic fact. So once the unity of time is established, it is always present.

The two unities that could be destroyed leading to severance are:1. Destruction of unity of interest - subsequent acquisition of an interest by a joint tenant.2. Destruction of unity of title - inter vivos alienation by a joint tenant of his interest to a third party.

So all you were left with were the unities of interest and title. And, as you’ll see from the handout, you could destroy unity of interest by one of the joint tenants acquiring a further additional ownership interest in the land. This could happen where the interest held in a joint tenancy was less than a fee simple and the person goes off and buys an extra interest. That would destroy unity of interest. Or unity of title. If a joint tenant purported to convey their interest to a third party. That was possible because, say you’ve got X and Y as joint tenants and Y conveys to Z. That means that X is left to Z and they can’t be joint tenants because the unity of title is gone. X’s title is derived from whatever disposition created that joint tenancy, but Z’s title is derived from the later conveyance and therefore the unity of title is gone. And in fact, this mechanism whereby you convey to a third party had to be used even if you wanted to effect a severance in your own favour. Say Y wanted to obtain a distinct share in the land, the law didn’t allow you to convey to yourself so you had engage in some kind of bizarre mechanism whereby you conveyed to Z who then conveyed back to you. And again, that destroyed the unity of title because Y now claims title by virtue of a different deed to X. You chose to do these things.

Before the 2009 Act, a severance could also occur where you had joint tenants and one or other of them had a judgment mortgage registered against their interest in the land. Judgment mortgages, as I said in the context of registered land, are quite commonplace and are becoming more so due to the economic climate. A judgment mortgage is an involuntary transaction. Despite the use of the word mortgage, it doesn’t involve any consent on the part of the person who is classed as the judgment mortgagor (the landowner). It’s a non-consensual transaction by definition. Why should your co-operation be required in respect of something that is being used to make you pay a debt that hitherto you have not paid or refused to pay? The law has held that in a situation with joint tenants where one of them was indebted, the effect of the judgment mortgage was to convey the debtor’s interest to the judgment creditor. If you subsequently paid the debt, the interest went back, but that didn’t put the joint tenancy back together again. There was a severance because you had destroyed the unity of title and the subsequent payment of the debt didn’t change that. So judgment mortgages severed joint tenancies. And that was important because many of the tenancies they severed were in favour of husbands and wives. The husband owed money and the wife didn’t. He was sued, a judgment mortgage was entered against the property, and the joint tenancy, which was the vehicle by which they held the family home, was severed.

The 2009 Act has a simple policy in respect of joint tenancies which was as follows: the Oireachtas took the view that joint tenancies are something that people establish with a particular intent and therefore it is undesirable that joint tenancies could be torn up as easily as the law allowed at the time. So the 2009 Act dealt with that issue by providing that there is no more severance of joint tenancies by judgment mortgage. Section 30(3) of the 2009 Act provides that:

“From the commencement of this Part, registration of a judgment mortgage against the estate or interest in land of a joint tenant does not sever the joint tenancy and if the joint tenancy remains unsevered, the judgment mortgage is extinguished upon the death of the judgment debtor.”

What that means is that judgment mortgages against joint tenants are not as effective as they used to be. Now, they’re still effective in respect of section 31 of the 2009 Act, which I will come to shortly. Section 31 still helps judgment mortgagees, but what section 30(3) is saying is that this unintended and undesired severance which the law allowed for up to 2009 is done away with. That’s the first important point.

The next point is that sections 30(1) and (2) aren’t saying you can’t sever a joint tenancy, but they respect the intent that was there when the joint tenancy was created. And so what the law says now is, a joint tenancy is not severed without consent. You can no longer go off and unilaterally effect a severance to suit yourself. You entered into a joint tenancy with somebody and then you change your mind and you want to sever it, and the old law allowed you to do that – you could convey it to somebody who would convey it back to you, destroying the unity of title, and thereby making you a tenant in common. This was the case even though your co-joint tenant thought you were always going to be joint tenants and may have entered into an agreement only on that basis. You were able to set that at nought under the old law.

Section 30(1), (2) of the LCLRA 2009 now provides:

(1) From the commencement of this Part, anya) conveyance, or contract for a conveyance, of land held in joint

tenancy, orb) acquisition of another interest in such land, by a joint tenant without

the consent referred to in subsection (2) is void both at law and in equity unless such consent is dispensed with under section 31(2)(e).

(1) In subsection (1) “consent” means the prior consent in writing of the other joint tenant or, where there are more than one other, all the other joint tenants.

So in other words, severance between joint tenants is now a consensual matter, it has to be agreed upon, and if it isn’t, there’s no severance. You can’t employ these techniques to destroy the unities of interest or title without the consent. Now, the the courts do have the power to dispense with consent if it’s appropriate to do so, and it can do so, as we’ll see, in the context of section 31.

But the requirement of consent provides an important safeguard. It means that the form of co-ownership selected for these co-owners is preserved unless they agree or unless the court intervenes.

Severance in EquityEquity was always a little bit more flexible in allowing for severance of a joint tenancy because it didn’t like joint tenancies. It regarded them as slightly unjust. It preferred the idea of split shares and regarded them as being more equitable. And so equity didn’t insist on you having a conveyance or an acquisition by way of legal document or legal instrument. It didn’t insist that title should have passed to a third party or that title to a further interest should have vested in a joint tenant. It didn’t require the thing to be completed by deed. It would give effect to less than that because, of course, equity regards as done that which ought to be done, equity looks at substance rather than form.

Section 30(4) of the LCLRA 2009 says:“Nothing in this section affects the jurisdiction of the court to find that all the joint tenants by mutual agreement or by their conduct have severed the joint tenancy in equity.”

So the equitable jurisdiction isn’t affected. But what section 30 is acknowledging – and is in fact correct in this – the equitable jurisdiction was always based on the idea of something being worked out amongst the joint tenants. Now of course equity would recognise a severance in the same situations that the common law would – acquisition of a further interest or disposal of your interest – but it also recognised two further situations as giving rise to severance:1) Agreement between the joint tenants to hold as tenants in common. Just an

agreement; no deed, no formal document was needed to be entered into whereby you all became tenants in common at law. In equity just an agreement would be effective.

2) Any course of dealing indicating that the joint tenants were treating their interests as constituting interests under a tenancy in common. Even less than an agreement.

And that remains the law; those headings are still good. And there’s no reason why they shouldn’t be, because they are consistent with the policy of the 2009 Act, the policy being, if a severance is going to occur, it has to be by consent, unless the court intervenes. So that is the situation in relation to severance. Severance is now controlled and is about consensus for the most part, subject to the courts’ intervention.

Determination of Joint Tenancy/Tenancy in Common The last thing we have to talk about in the context of co-ownership is how it comes to an end. Naturally it is always open to people to agree in respect of these things, but what we’re really interested in is where there has to be a degree of compulsion. But let’s just work through the various headings.

1. Union in a sole tenantThat can happen where survivorship keeps operating until there’s only one joint tenant remaining. When it hits the last one there is no more joint tenancy, there is no more co-ownership, it’s a property owned by one person, no different to any other piece of land. And so in that situation, co-ownership ends. It could also happen that one co-owner may have bought everybody else out; they may have been tenants in common, and there would have been no survivorship, but you buy them out. There’s nothing wrong with that. But that’s all on the basis of agreement.

2. PartitionRather than one co-owner buying everybody else out, they may agree to divide up the property. Again there nothing at all wrong with that. Sometimes you find one person taking a piece that’s possibly more valuable than the other, and there is sometimes brought into in what’s called consideration for the quality of exchange, as it were. One party get’s a piece that’s worth 60% of the overall value, with the other party getting the piece worth 40%, plus some money. And if that’s worked out by agreement, again it’s fine.

3. Court OrderSection 31 of the LCLRA 2009 is entitled ‘Court Orders’ and provides:

(1) Any person having an estate or interest in land which is co-owned whether at law or in equity may apply to the court for an order under this section.

(2) An order under this section includes—(a)an order for partition of the land amongst the co-owners,(b)an order for the taking of an account of incumbrances affecting the land, if

any, and the making of inquiries as to the respective priorities of any such incumbrances,

(c) an order for sale of the land and distribution of the proceeds of sale as the court directs,

(d)an order directing that accounting adjustments be made as between the co-owners,

(e) an order dispensing with consent to severance of a joint tenancy as required by section 30 where such consent is being unreasonably withheld,

(f) such other order relating to the land as appears to the court to be just and equitable in the circumstances of the case.

(1) In dealing with an application for an order under subsection (1) the court may—

(a)make an order with or without conditions or other requirements attached to it, or

(b)dismiss the application without making any order, or(c) combine more than one order under this section.

(4) In this section—(a)“person having an estate or interest in land” includes a mortgagee or

other secured creditor, a judgment mortgagee or a trustee,(b)“accounting adjustments” include—

(i) payment of an occupation rent by a co-owner who has enjoyed, or is

continuing to enjoy, occupation of the land to the exclusion of any other co-owner,

(ii) compensation to be paid by a co-owner to any other co-owner who has incurred disproportionate expenditure in respect of the land (including its repair or improvement),

(iii)contributions by a co-owner to disproportionate payments made by any other co-owner in respect of the land (including payments in respect of charges, rates, rents, taxes and other outgoings payable in respect of it),

(iv)redistribution of rents and profits received by a co-owner disproportionate to his or her interest in the land,

(v) any other adjustment necessary to achieve fairness between the co-owners.

(5) Nothing in this section affects the jurisdiction of the court under the Act of 1976, the Act of 1995 and the Act of 1996.

(6) The equitable jurisdiction of the court to make an order for partition of land which is co-owned whether at law or in equity is abolished.

A court order is where you have problems. And this is inevitable in relation to co-ownership. It was recognised by the legislature as far back as the 16th century that co-ownership did not have a happy course and that co-owners didn’t get on. And so in a piece of legislation in 1592 called An Act for Joint Tenants, it was recognised that the courts would partition land – divide it up. And although the Act was called An Act for Joint Tenants, it applied to tenants in common as well. In the 19th century you had the Partition Acts of 1868-1876, and significantly they created a jurisdiction to order a sale in lieu of partition. Because it was recognised that a partition was often not a happy way of dealing with it because partition involved dividing the property up. And that’s fine if you’ve got a field with road frontage running along it so you can divide it up so that you’ve got two fields. But if it’s a house you can’t really partition it. In the 19th century you had a big debate as to who got the chimney, because if you couldn’t light a fire you would freeze. And so it wasn’t a practical way of dealing with the issue, and the courts were given the power to order the sale of the property and the division of the proceeds in lieu of partition. And the important thing about saying the court has the power is that the courts power is there to be invoked by one of the co-owners – one co-owner can complain about another. You had this legislation for a long time, and although you had the 19th century reform, the reform was very limited because it was about something instead of partition, which was sale. And sale could be a messy solution, particularly if the market wasn’t buoyant. And of course, needless to say, sale was never a solution for a co-owner individually, because all they could sell was their interest, and nobody would want to buy it. When was the last time you saw – even in the boom – ‘for sale. Half share of house with slightly mad person already living there.’ You won’t see it because there’s no market for individual co-owners interests. People don’t buy into these situations because you don’t know what you’re buying into. So the only way the law could deal with it was to sell, at the discretion of the court. This was rather unsophisticated and a sale could be very hard on somebody who was treating

this property as their home. That person might not be the source of the unrest prompting the sale, but they would be unable to acquire as nice a property out in the world with their share of money from the sale, which would amount to a fraction of the value of the original property they were living in.

So what you have to bear in mind when you look at section 31 is that it is attempting to create a new order in relation to co-ownership. And as we’ll see as we’re going through it, it attempts to establish a little bit more balance, without necessarily going for the nuclear option of a sale (which is still available).

And you can tie subsection (1) down to subsection (4) because subsection (4) provides that in subsection (1), a “person having an estate or interest in land” includes a mortgagee or other secured creditor, a judgment mortgagee or a trustee. So judgment mortgagees haven’t been completely hamstrung, they can have recourse to this provision. So the bit in section 30(3) that said there’s no severance wasn’t the end of the world.

What can you get on a section 31 application?(a) Subsection 2(a) for a start says that an order under this subsection includes

an order for partition of the land of the co-owners. So that’s still there.

(a) An order for the taking of an account of incumbrances affecting the land, if any, and the making of inquiries as to the respective priorities of any such incumbrances. That can be important where you have a sale because it’s working out who had a mortgage or a charge against this land. So you may have to work out who gets paid first out of the proceeds.

(a) An order for sale of the land and distribution of the proceeds of sale as the court directs. It doesn’t necessarily follow it’s going to be in shares proportionate to the shares of the co-owners. And we’re coming to an important point in a second and that does relate to it.

(a) The accounting adjustments referred to are very important. These represent a change in the law, because before the 2009 Act came into force in respect of these issues, unity of possession meant that a co-owner had a right to possession of the entire property. And that remains the law. But because they were entitled to possession they couldn’t be excluded from possession, but nor did they have to account for their possession. So say you had (to use an example that you will see on many a problem question in past papers) three brothers and the mother dies and leaves the house to them as joint tenants. Two of the brothers are living on the other side of the world in Australia, and the last brother in Ireland gives up his rented accommodation and goes back to live in the old family home. And as co-owner he has a full right to live there. But the other two say ‘well that’s a bit hard on us, would you not give us a bit of rent?’ And the brother would say ‘I don’t have to give you rent, I have a right to live here. If you want to live here you’re more than welcome, I’ll fluff up the pillows for you if you want. You don’t need an invitation from me because you co-own this place. But I’m not paying you rent.’ But of course they have made lives elsewhere and would see it as unfair that the one brother gets all the

benefit of the property. It was as good as the Ireland brother owning the property outright because they weren’t there to cramp his style. That was the law, that was the reality, you did not have to account to the others for your occupation because your occupation was by virtue of your title as a co-owner. But these accounting adjustment allow the court to say ‘well hang on a minute, there’s a degree of inequity here or it’s disproportionate because there’s a greater benefit going to somebody than somebody else.’ The greater benefit can arise in a number of ways and some of it is wrong and wouldn’t have been allowed before the Act, but some of it, as in the example I’ve just described, would have to be taken into account. Section (4) defines the “accounting adjustments” from section 2(d) that a court can make in an order. Accounting adjustments include the following:payment of an occupation rent by a co-owner who has enjoyed or is

continuing to enjoy occupation of the land to the exclusion of any other co-owner. So if you’re de facto getting sole occupation it may be fair to say that you need to pay a little bit. 4(b)(i)

Compensation to be paid by a co-owner to any other co-owner who has incurred disproportionate expenditure in respect of the land (including its repair or improvement). Say all three brothers were living under the same roof and the roof gets a huge hole in it and one brother pays to have it repaired, it is fair that the cost to repair should be shared. 4(b)(ii)

Contributions by a co-owner to disproportionate payments made by any other co-owner in respect of the land (including payments in respect of charges, rates, rents, taxes and other outgoings payable in respect of it). Again, same principle. 4(b)(iii)

Redistribution of rents and profits received by a co-owner disproportionate to his or her interest in the land. In fact that was always possible under the old law because you were only entitled to receive a share of the rents and profits commensurate with your share. You weren’t entitled to keep all the rent if you were the one collecting it. 4(b)(iv)

Any other adjustment necessary to achieve fairness between the co-owners. 4(b)(v)

And these accounting adjustments can occur as an independent remedy or they can occur in the context of a sale. So when the court is ordering the sale, it orders that the proceeds will not be divided three ways because account needs to be taken of repairs paid for or whatever.

(a) An order dispensing with consent to severance of a joint tenancy as required by section 30 where such consent is being unreasonably withheld. So section 31 can deal with a severance situation, it’s not necessarily bringing the co-ownership to an end. It can say ‘you’re allowed now become tenants in common, because this individual is acting unreasonably in withholding their consent.’

(b)Such other order relating to the land as appears to the court to be just and equitable in the circumstances of the case. That’s a kind of a catch all provision, which is very important because it means that court can, depending on the facts before it, tailor a very specific and very discrete remedy peculiar to the circumstances of the parties.

Subsection 3 says that in dealing with an application for an order under subsection (1) the court may

(a) make an order with or without conditions or other requirements attached to it, or

(b)dismiss the application without making any order, or(c) combine more than one order under this section.

So the court, if it’s asked for one thing, may say ‘ah no, we may do it, but we’ll add conditions, or we’re going to combine it with other things.’ So the parties can’t operate as if this is a menu, or the party going to court can’t say, ‘well I want something off the menu but I’m not touching the other things.’ The court has the power to engineer a solution.

Subsection 4 defines terms in other subsections and is thus dealt with under such sections.

Subsection 5 says that nothing in this section affects the jurisdiction of the court under the Act of 1976, the Act of 1995 and the Act of 1996. The Act of 1976 is the Family Home Protection Act and the Act of 1995 is the Family Law Act and the Act of 1996 is the Family Law (Divorce ) Act. So those family law statutes have their own particular code for dealing with co-ownership between spouses.

And then finally, to copperfasten the point, subsection 6 provides that the equitable jurisdiction that existed to order partition is gone and it’s now a matter of statute law. So that’s the way disputes relating to co-ownership are dealt with. There’s one other point that I should mention which is, where you have co-ownership, often in a commercial context, the most sensible way to avoid all of these problems is to have what’s called a co-ownership agreement. Now that can be a very simple way of dealing with it. In other words you acknowledge from the outset the risk that the parties might fall out, or even that circumstances may simply change and cause the arrangement to lose its efficacy, and enter into an agreement that will say ‘here’s the way we are going to organise things if that happens.’ It might provide that one party have an option to buy out the other, for example. This is know as a put and call option. A put and call option is where you have the option to put your interest to somebody – if such an option exists you can make someone to buy you out by putting your interest to them and that is a contract, you can get specific performance of that. Or the other type of option is a call, where you can call on you to sell to me. So a well regulated co-ownership agreement can exist through such an agreement. But these generally operate in a commercial field; you don’t find them in husband/wife scenarios.