The client may sell a fraction of the property for value, and register it, whereby there will be severance at law and at equity (Wright v Gibbons) The client may mortgage her interest I recommend the sale of a portion (e.g. 1/50th share) to break the unity of interest, severing at equity. The registration of which will update the rights at law. You act for a finance company. Your client wishes to lend money to one of two joint tenants of land, taking a mortgage over that joint tenant's interest in the land. Advise your client on the basis that the land is: (a) Old system land; (b) Torrens title land. Under OST, the mortgage is a conveyance, and it breaks the unity of title, creating severance (Re Pollard’s Estate) and giving the bank rights even after the death of the title-holder. This is a safe mortgage. A Torrens mortgage is in the second schedule, and does not require a conveyance, thus, there is no severance (Lyons v Lyons), and the mortgagor’s interest is liquidated if the mortgagor predeceases the other joint tenant. This is not a safe option. Max and Judy are registered proprietors of an estate in fee simple in Green Gardens, a property under the provisions of the Real Property Act, as tenants in common. Green Gardens is a residential apartment building containing six apartments. Judy has lived overseas for several years, and Max has occupied one of the apartments. He has received the rents from the remaining five apartments, and carried out maintenance work when necessary. Max has also erected at the front of the apartment building a single storey building containing two shops, from which he receives rent, and installed new plumbing in the apartments, following a statutory notice from the public health authority. Max has just died, and Judy seeks your advice as to whether Max’s executors are now entitled to claim any amount for the money expended on the shops, the plumbing, and general maintenance. She also wants to know whether she has any claim in respect of the income from the shops and the apartments. Advise Judy. In so doing, what authorities will you rely on? Why? Summary of Max and Judy are tenants in common of GG under RPA (TT) GG has 6 apartments
The client may sell a fraction of the property for value, and register it, whereby there will be severance at law and at equity (Wright v Gibbons) The client may mortgage her interest I recommend the sale of a portion (e.g. 1/50th share) to break the unity of interest, severing at equity. The registration of which will update the rights at law. You act for a finance company. Your client wishes to lend money to one of two joint tenants of land, taking a mortgage over that joint tenant's interest in the land. Advise your client on the basis that the land is: (a) Old system land; (b) Torrens title land. Under OST, the mortgage is a conveyance, and it breaks the unity of title, creating severance (Re Pollard’s Estate) and giving the bank rights even after the death of the title-holder. This is a safe mortgage. A Torrens mortgage is in the second schedule, and does not require a conveyance, thus, there is no severance (Lyons v Lyons), and the mortgagor’s interest is liquidated if the mortgagor predeceases the other joint tenant. This is not a safe option. Max and Judy are registered proprietors of an estate in fee simple in Green Gardens, a property under the provisions of the Real Property Act, as tenants in common. Green Gardens is a residential apartment building containing six apartments. Judy has lived overseas for several years, and Max has occupied one of the apartments. He has received the rents from the remaining five apartments, and carried out maintenance work when necessary. Max has also erected at the front of the apartment building a single storey building containing two shops, from which he receives rent, and installed new plumbing in the apartments, following a statutory notice from the public health authority. Max has just died, and Judy seeks your advice as to whether Max’s executors are now entitled to claim any amount for the money expended on the shops, the plumbing, and general maintenance. She also wants to know whether she has any claim in respect of the income from the shops and the apartments. Advise Judy. In so doing, what authorities will you rely on? Why? Summary of Max and Judy are tenants in common of GG under RPA (TT) GG has 6 apartments
old-system-mortgages-and-co-ownership.docx