Chapter 5 Flowcharts with audio: Co-ownership: Bringing it all together

Students often ask me: ‘how do I structure my analysis of a co-ownership scenario?’ And so I am going to talk you through one suggested approach using the flow chart in my book.

Start by asking yourself: is there unity of possession? If there is no unity of possession there can simply be no co-ownership at all. If there is unity of possession, move in your next stage to consider how the co-owned land is held at law and in equity. And you need to consider these quite separately.

At law, there can only be a joint tenancy, and there's a maximum number of four joint tenants. In equity, it's possible to have a joint tenancy or a tenancy in common.

How, then, are we going to decide what we've got? Joint tenancy or tenancy in common? One way is to start by asking: are all the four unities present? If they're not, then that would suggest a tenancy in common. If all four unities are present, that would indicate a joint tenancy. But let's check that by moving to the next stage of our analysis.

Ask: is there an express declaration of tenancy in common? If there is, that would indicate a tendency in common. If there isn't, ask yourself: is there an express declaration of joint tenancy? And if there is, that would indicate and suggest a joint tenancy in equity. If there's no expressed declaration of joint tenancy, move to ask: are there any words of severance in the conveyance, for example?

If there are words of severance, that would indicate a tenancy in common. If there are no words of severance, why not then consider whether any of the presumptions of tenancy in common apply? If they do, that would strongly suggest a tenancy in common. If the presumption, or presumptions, of tenants in common do not apply, or they apply but have been rebutted, ask yourself: do any of the presumptions of joint tenancy in equity apply? And if they do, that would strongly indicate that in equity there is a joint tenancy.

I hope that's helpful in giving you one way of structuring your analysis in a co-ownership scenario. Please do return to this video and return to the flow chart in the book to help you as you study the topic of co-ownership.