ABSTRACT
The law relating to co-ownership of land1 forms a major part of most land law syllabuses. More important than that, however, is the fact that this is one area of land law that can have a powerful impact on the lives of everyone in England and Wales. In simple terms, the law of co-ownership operates whenever two or more people enjoy the rights of ownership of land at the same time, whether that be freehold or leasehold land. The co-owners may be husband and wife,2 civil partners, unmarried partners,3 family members,4 friends, neighbours or business partners,5 or stand in any other relationship to each other that we can think of. In other words, ‘the law of co-ownership’ is a set of rules that governs dealings with property that is owned simultaneously by more than one person. It is not concerned specifically with the property law problems of married or unmarried couples. It is not a species of family law. Of course, many of the problems that exist with co-owned property arise precisely because an emotional relationship has broken down, or friends have fallen out, or a mortgage cannot be paid. However, these are the causes of the problem and the law of co-ownership is not designed specifically for these domestic eventualities. It is important to remember the fundamental ‘property law’ nature of co-ownership when considering the issues discussed below. The law of co-ownership is a product of statute and the common law. The Law of Property Act (LPA) 1925 and the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) are particularly important, with the latter amending significantly the original 1925 legislative scheme. Moreover, social and economic changes also have had a great impact on the frequency with which co-ownership arises and the consequences it brings. It is no longer true that co-ownership is limited to large, country estates or to land held for investment purposes. Neither is it true that co-ownership can arise only on a deliberate conveyance of land to two or more people. The implied creation of co-ownership of land – or rather the acquisition of ownership rights by means other than a formal conveyance – is a relatively common phenomenon and an even more common claim. As we shall see, much of the law of co-ownership today concerns the rights and responsibilities of the co-owners of the family home and the way in which they interact with banks, building societies and other purchasers. This change in the role of co-ownership – or, rather, this broadening of the reach of the law on co-ownership away from purely commercial or investment land – has generated significant changes to the scheme of coownership as it was intended to operate originally under the 1925 property legislation. These changes have been achieved both by statute (TOLATA 1996) and by judicial development of the common law.
