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EQUITABLE INTERESTS IN
LAND
But first… continuing the module Fragmenting Interests in Land

Equity -> ‘equitable rights’
Common law -> ‘legal rights’
Statute -> either legal or
equitable

Fragmenting the one estate
Equitable
interest
Legal
Interest

Legal interest – there for all to
see

Underneath, a court may find an
equitable interest that differs
from the legal interest
(except it’s not rotten…)

Structure of this module
What is it
Rights of
parties
Ending co-
ownership

No one joint tenant has a distinct and
separate title

A joint tenancy
is
characterised
by the four
unities and the
right of
survivorship

Wright v Gibbons – the 3 women held
as joint tenants
Olinda
Ethel
Rose
Bessie
Melba

When 2 severed their joint tenancy,
there was no more unity with the
third…
Olinda
Ethel
Rose
Bessie
Melba

The means of
creating co-
ownership
differ as
between
common law
and statute.

RIGHTS OF CO-OWNERS
INTER SE
Co-ownership

There are four
key rights that
exist between
co-owners
Occupation
rent
A/c of
profits
Trespass &
waste
Repair
&
maint

What are the
implications
of a common
right to
possession
of the
whole?

When might
exclusion be
wrongful?

Is exclusion the only
circumstance resulting in a right
to occupation rent?

Co-owners may have a right to
income and profits

Who is
responsible for
the cost of
repairs &
maintenance?

Can a co-
owner
trespass on
jointly owned
property?

ENDING CO-OWNERSHIP
Co-ownership

Terminating a tenancy in
common occurs in generally
the same way as termination
of a joint tenancy except for
severance

Apply to the court to order that the land
be split into 3 parts: partition
A, B and C want to get out of their
relationship but can’t agree; have no
course of dealings; are still all alive…
what can they do?
A, B and C hold as
joint tenants
Partition

If A, B and C cannot agree on
ending their co-ownership, any of
them may apply to the court for an
order for partition
A B C

Contrast a court order for statutory trust
for sale
$ $ $
A’s share
of the
proceeds
of sale
B’s share
of the
proceeds
of sale
C’s share
of the
proceeds
of sale

Harry and Dick own property as tenants in common. Dick leaves town
to stay with his parents on their farm. Two years later, Dick discovers
that:
• During the two year period, Harry has let Dick’s room to Wilma for
$80.00 a week and has used the rest of the house for his residence.
• Harry has spent $6,000 in repairs and maintenance (including
painting) the house, and a further $10,000 on renovations.
• Harry has cut down all the trees and shrubs in the yard above 1.5
metres in height.
Dick comes to you for advice.
1. Can he claim for a share of Wilma’s rent?
2. Can he sue Harry for occupation rent?
3. Is he liable to contribute to the cost of the repairs and
maintenance?
4. Is he liable to contribute to the cost of the renovations?
5. Can he recover damages from Harry for cutting down the trees and
shrubs?

• Joe, Andy and Mike inherit a farm as joint tenants. They farm
together, pooling their money in a joint account. They argue
constantly, and one day Joe grabs Mike, several centimeters shorter
than Joe, by the collar aggressively demanding that he leave the
farm immediately. Hearing the commotion, Andy enters the room
and in a show of support for Mike, decides to leave the farm as well.
• The next week Mike and Andy send a letter to Joe demanding that
he give them each a third of the profits of the farm and that he pay
each of them rent. They also demand that Joe sells the ute and farm
equipment that was bought from the money in the joint account and
split the proceeds between the three of them. Joe refuses to pay
either rent or a percentage of the farm profits, and in turn demands
that they pay him two thirds of the cost of a new roof that he is just
about to have put onto the farmhouse.
• Advise Mike and Andy including as to how they can terminate their
co-ownership.

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La2015 wk4 2014

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La2015 wk4 2014