Joint Interests in Land PDF

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Joint Interests in Land...

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Joint Interests in Land: Joint Tenants: Occurs when a parcel of land is vested in two or more people without any words of severance. (When words of severance used a Tenancy in Common is created.) Gateshead Investments Ltd v Harvey: Two key features of JT: Right of Survivorship & Four Unities. o Right of Survivorship s61 LTA: On the death of one JT their interest immediately transfer to the other JTs equally. No interest can be left to other people in a JTs will. o Four Unities of Joint Tenancy: (PITT) Unity of possession, Unity of interest, Unity of title and Unity of time. If all unities are not there then the concurrent interest is a tenancy in common. Severance: Words of Severance = Equally, between, among, share, divided between, distributed in joint & equal proportions.  Fleming v Hargreaves: What constitutes as severance? Severance operates in equity as the process to destroy either unity of title or unity of interest, resulting in the joint tenancy becoming a tenancy in common. o The joint tenancy was severed in equity as the husband's interest was assigned to a third party. o Also establishes when purchasing land, the LTA automatically registers you as joint tenants.  Gateshead Investments Ltd v Harvey: Each JT has the undivided right to keep or dispose of their interest in the property without the consent of any other JT. o Can do so even if money owed to creditors. Original JTs still in joint tenancy but new interest holder will be a tenant in common.

Tenancy in Common: Each tenant in common owns separate and distinct shares of the property. TIC do not have to have unity of interest and there can be an uneven amount of interest. No right of survivorship – TICs can leave there interest in the property to whomever in their will. o Property can pass on via a will as no severance of interest is necessary as all interests are separate and distinct. o TIC more appropriate for fragmented families. But can result in fragmented property interests and can result in many individuals owning one property. o S 55 PLA allows tenants in common to declare themselves joint tenants.  Can only take affect from the day they declare this as unity of time is needed. Bull v Bull: No unity of interest as the son contributed more to the purchase price than the mother. o Land put under sons name only, mother was held to be an equitable TIC and the son had no right to ask mother to leave. The mothers equitable interest shall remain in the house until it is sold and the house cannot be sold with vacant concession without her permission. Son was unable to evict her. o If disagreement occurs in TIC, the tenants should sell the house and divide money equally in accordance with their interests.

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Powers of the Court: S339-343 Section 339: Courts may order division of property Section 340: Order may not contravene RMA 1991 Section 341: Who can apply under s339: Co-owner, mortgagee with power of sale, person with changing order.  Section 342: Relevant Considerations: Extent of share, number of co-owners, value of contributions and improvements, hardship that would be caused by any order made.  Section 343: Further powers: Compensation (direct), how sale proceeds are divided, occupation rent (allows co-owners to make an offer). Holster v Grafton: Unanimous agreement needed among TIC in order to sell.   

o Mother made her children TIC of house in order to give them a share, when daughter wanted out of her ¼ share the court looked at the hardship of the daughter if he did not order the sale compared to the hardship of the mother if he did order the sale under s339. o Also looked at the fact that the children had done nothing to upkeep the house and property. Land not sold and mother entitled to stay as long as she wanted. Bayly v Hicks: Shows how wide the powers of the court are. The judge did not grant either party the order they applied for. o The judge instead came up with his own order and imposed it on the parties. Held to be okay as the judge conferred with the parties and gave them the opportunity and time to offer any evidence as to why he should not impose the new proposal.

Unit Titles: Unit Titles Act 2010: Common property (roofs, balconies, foundations) is now owned by the body corporate not the individual. Applies no matter what level you are on (s138 UTA 2010). o Any repairs or maintenance that needs to be done is the responsibility of the BC. The owners of the units are levied for costs. o Two types of levies:  Ownership Interest: Based on relative value of unit  Utility Interest: based on relevant benefits and costs of common property units o Section 80: Proprietors alterations and additions.  Owners of units must repair and maintain the unit and keep it in good order. Under the new act a unit owner no longer needs permission of the BC to do alterations as long as the alteration/repair does not affect another unit. Tish v Body Corporate: S48 Scheme: Leaky building caused damage to apartment below. In relation to a scheme to repair a leaky building. o Three step process to consider an application for a scheme: 1. The Court must be satisfied that the building has been damaged or destroyed. 2. If so satisfied, the Court must decide whether to settle a scheme. That is, the Court must decide whether a scheme is appropriate in the circumstances. 3. If the Court decides a scheme is appropriate, it must then decide what the terms of the scheme should be. o Five guiding principles in considering scheme: 1. A scheme with broad support is to be preferred 2. The schemes appropriately detailed (no misunderstaning or arguments) 3. S48 order has retrospective effect. “I can see no reason why orders cannot relate back to the time when the damage entitling an order under s 48 first occurred” 4. Work should normally be done to the same standard and at the same time. “The work should be the subject of a single managed building contractor” The fairness and desirability of completing work to a uniform standard is equally self evident 5. The terms of the s 48 scheme should depart from the Act and from the body corporate rules no more than is reasonably necessary to achieve what is fair between unit owners in the circumstances. Body Corporate 114424 v LV Trust Holdings Ltd: Compensation for damages during repairs of common property. Affirmed the interpretation and application of s74 of the 2010 Act in Tish is still good law. o Aim was to “balance the interests of each unit holder in a way that imposed terms that achieved the outcome fairest to all unit holders…”

o If a unit owner suffers a significant loss during the repairs of common property they are entitled to compensation from the BC. o However keep in mind the floodgates issue – only significant loss. McEwan v Curtis: Alledged breach of lease covenants. Interim injunction granted. o Party wall suffered damages in earthquakes, $70,000 needed to repair. Had a covenant between lessor/lessee any insurance money received due to earthquake damage shall be used to make good the damage. o Injunction to prevent sale of house granted....