Co-ownership

1
Co-ownership

• Cameron Stewart
• (thanks to Jim Helman and Shae McCrystal errors
  are mine)

2
Joint Tenancy

• In a joint tenancy each of the joint tenants has
  an entitlement to the whole property. There is no
  distribution of any particular share of the
  property to any of the joint owners and no joint
  owner can say that any part of the property
  belongs to that joint owner.
• The 2 features that characterise a joint tenancy
  and separate it from a tenancy in common are
• The four unities
• The right of survivorship

3
Unity of title

• The interests of joint tenants must be created in
  the same instrument or dealing. It is not
  possible to create a joint tenancy between
  co-owners who acquire their interests by separate
  instruments or dealings. The creation of
  interests by separate instruments or dealings
  results in the creation of a tenancy in common.

4
Unity of title

• The interests of joint tenants must be created in
  the same instrument or dealing. It is not
  possible to create a joint tenancy between
  co-owners who acquire their interests by separate
  instruments or dealings. The creation of
  interests by separate instruments or dealings
  results in the creation of a tenancy in common.

5
Unity of possession

• This requires that the co-owners be entitled to
  possession of the whole property, to be enjoyed
  together with the other co-owners.
• There is no claim for any particular part of the
  land.

6
Unity of time

• This requires that the interests of all joint
  tenants vest at the same time. This is usually
  satisfied if the interests are created at the
  same time.

7
Right of survivorship

• This is an essential feature of a joint tenancy.
  If there is no right of survivorship then there
  cannot be a joint tenancy. If a joint tenant dies
  then the property remains in the ownership of the
  other joint tenants because they have always been
  entitled to the whole property.
• Rather than saying that a surviving joint tenant
  has acquired the interest of the joint tenant who
  died, it is perhaps more correct to say that the
  interest of the joint tenant who dies has been
  extinguished. The interest of a deceased joint
  tenant is no interest at all, and there is
  nothing that forms part of the estate of the
  deceased joint tenant.
• The right of survivorship in the surviving joint
  tenant cannot be defeated by the joint tenant who
  dies leaving his or her interest by will.

8
Corporations?

• Section 25 of the Conveyancing Act provides that
  Corporations can hold interests as joint tenants.
  If the company is dissolved then the right of
  survivorship comes into effect.

9
Who dies first?

• Section 35 Conveyancing Act provides that where
  it is impossible to tell, the older person dies
  first and the younger dies second.
• There are exceptions to the section.
• Only applies to title to property.
• Only raises a presumption, rebuttable by evidence
  that the deaths occurred in a particular order,
  not according to seniority.
• Only applies where the death of the person is
  known to have occurred, and is not presumed.

10
Who dies first?

• In Hickman v Peacey 1945 AC 304 a basement air
  raid shelter was blown up by a high explosive
  bomb. At the time of the explosion there were
  five persons in the shelter as follows-
• (1) Mabel Price-Jones, 52, the occupier of the
  house
• (2) her daughter
• (3) Elizabeth Sarah Parke, 70, housekeeper for
  Randolph Grosvenor
• (4) Randolph Grosvenor, 73, the first testator
  and
• (5) Edward Grosvenor, 66, the second testator

11
Who dies first?

• The difficulty in the case occurred because the
  Will of (4) left property to (5) if he were
  surviving at the date of my decease and also to
  (3). The Will of (5) left property to (1), (2)
  and (3) if they survived him.
• The Court was asked to determine whether under
  the English Law of Property Act 1925 the deaths
  occurred in order of seniority. Cohen J at
  first instance held that there was no evidence
  that they died simultaneously and that they must
  be presumed to have died in order of seniority.
  The Court of Appeal reversed this decision,
  holding that their deaths were simultaneous

12
Who dies first?

• The matter was then heard by the House of Lords.
  The House of Lords held
• ... that in the absence of such evidence (that
  is, evidence to show whether any of the deceased
  had survived the others) they had died in
  circumstances rendering it uncertain which of
  them survived the other or others within the
  meaning of s184 of the Law of Property Act 1925
  and that accordingly in the administration of
  their estates by the executors of the respective
  Wills, the younger of the deceased should be
  deemed to have survived the elder.
• An inference, drawn from the facts, that they
  died simultaneously would not make the section
  inapplicable and in any case would not be
  justified on the facts disclosed.

13
Presumed dead?

• Halbert v Mynar 1981 2NSWLR 659
• Charaus was made on presumption of death only.
  The Grant stated Deceased presumed to have died
  On or after 7th June 1972.. It was necessary to
  apply to the Court for leave to distribute the
  Estate and for directions as to those parts of
  the Will that should be complied with in those
  directions.
• John Charaus was married once only to Emily
  Charaus in about 1939 there being one child of
  the marriage, Blanka Olga, born on 2 June 1945.
  Blanka married Mirek Mynar on 3 April 1971.
• On 7 June 1972, John Charaus and Blanka
  disappeared and have not been seen or heard
  since.

14
Presumed dead?

• Waddel L J found that s.35 did not apply where
  one of the deaths is presumed under the Common
  Law. He said
• It is unlikely that the legislature intended the
  Section to determine arbitrarily the order of
  death of persons whose deaths may have been
  separated by many years.
• As John Charaus and Blanka disappeared in June
  1972 and Emily Charaus (Johns wife) died in
  October 1973, it is difficult to see how the
  Court could have come to a conclusion that he was
  presumed to have died between June 1972 and
  October 1973 when there was no evidence before
  the Court that he had died at all and the Grant
  of Probate of his Will was made on the
  presumption of death after a period of 7 years
  from June 1972 elapsed.

15
Tenancy in common

• In contrast to a joint tenancy, a tenancy in
  common has the co-owners owning interests in the
  land in proportion to their interest. If
  co-owners are tenants in common in equal shares
  then they each own a one half interest in the
  property.
• If they own unequal shares then they own the
  property in the proportions they are stated as
  holding in the property. Eg three quarters/one
  quarter.
• The share of a tenant in common is said to be an
  undivided share. It is a separate share but not
  a physically divided share.

16
Creation of Co-ownership

• Before the Conveyancing Act 1919 the common law
  presumed that a conveyance to two or more persons
  created a joint tenancy. This presumption could
  be displaced by specific words such as a one
  half interest to each of A B , to be divided
  equally to my five sons equally
• Rentoul v Rentoul 1944 VLR 205

17
Creation of Co-ownership

• Equity preferred tenancy in common
• Unequal contribution to purchase price
• Unequal contribution to mortgage liability
• Unequal contribution to business assets the
  right of survivourship has no place amongst
  merchants
• Resulting Trusts
• Equity follows the law on a 5050 input

18
Creation

• Section 26(1) of the Conveyancing Act provides
  that
• In the construction of any instrument coming into
  operation after the commencement of this Act a
  disposition of the beneficial interest in any
  property whether with or without the legal estate
  to or for two or more persons together
  beneficially shall be deemed to be made to or for
  them as tenants in common, and not as joint
  tenants.

19
Delehunt v Carmody

• In Delehunt v Carmody (1986) 161 CLR 464 Francis
  Carmody and Ethel Delehunt contributed equally to
  the purchase price of a property that was
  registered only in the mans name. They agreed
  that the land would be owned in equal shares and
  that at some time in the future it would be put
  in both names. The matter came before the Court
  after Francis Carmody died intestate and letters
  of administration were granted to Heather
  Carmody, his estranged wife.

20
Delehunt v Carmody

• At first instance Wooton J held that there was a
  trust and that Francis Carmody held the property
  upon trust for himself and Ethel Delehunt as
  joint tenants in equity. On appeal, the Court of
  Appeal disagreed and found that there was a trust
  but that it was a trust for the parties in equal
  shares as tenants in common.

21
Delehunt v Carmody

• The matter then came before the High Court to
  consider the question that the Court of Appeal
  erred in holding that s.26 of the Conveyancing
  Act 1919, as amended (NSW) displaced the
  equitable presumption that where two persons
  advance equally the purchase monies for a
  property they hold as equitable joint tenants.

22
Delehunt v Carmody

• Gibbs CJ
• It would be indeed surprising if the rules of
  equity required the courts to follow a rule of
  the common law that no longer existed and in
  doing so to reach a result which equity generally
  tried to avoid. However the doctrines of equity
  are not so inflexible. If equity follows the law,
  it will follow the rules of law in their current
  state.

23
Real Property Act 1900

• 100   Registered co-tenants
• (1)  Two or more persons who may be registered as
  joint proprietors of an estate or interest in
  land under the provisions of this Act, shall be
  deemed to be entitled to the same as joint
  tenants
• Inconsistency?
• registered as joint tenants or registered as
  joint proprietors

24
Rights between Co-owners

• Right to Possession
• Because co-owners have unity of possession, each
  is entitled to occupy the whole land and there is
  no concept of trespass by one co-owner against
  another. However, if one co-owner ousts the
  other co-owner (and we will see what this means
  later) such that they deny a co-owners right to
  possess the property, they can bring an action in
  trespass seeking repossession of the property -
  claiming that they have been ejected.

25
Rights between Co-owners

• It also follows that one co-owner cannot grant a
  right of possession to another person that would
  exclude the right to possession held by all the
  other co-owners. So if for example one co-owner
  grants a lease, this would not prevent the other
  co-owners from exercising their right to
  possession unless they were also parties to the
  lease. In this situation the co-owner has only
  given the tenant the right of possession that
  they themselves have and that is a right to
  possession which is shared with the other
  co-owners.

26
Rights between Co-owners

• Right to Value of Repairs / Improvements
• Where one co-owner voluntarily undertakes repairs
  or improvements to a jointly owned property they
  cannot force the other co-owners to contribute to
  those repairs or improvements unless they have
  reached agreement on the repairs or improvements
  first.

27
Rights between Co-owners

• In Leigh v Dickeson (1884-1885) LR 15 QBD 60, a
  co-owner who was in possession of jointly owned
  property expended monies on repairs. The co-owner
  then sought a contribution to the cost of those
  repairs from his co-owner. The court refused to
  grant the request finding that there was no duty
  on co-owners to repair their property and that
  they could, if they chose, allow the property to
  decay. The court said that if one co-owner makes
  a purely voluntary payment, then the other
  co-owners are under no legal obligation to
  reimburse them even though the value of their
  property is increased. To find otherwise would
  allow one co-owner to force the other to expend
  monies against his or her will. Note Lindley J at
  69 Tenancy in common is a tenure of an
  inconvenient nature, and it is unfit for persons
  who cannot agree among themselves.

28
Rights between Co-owners

• Cotton, LJ
• As to the claim for improvements, it has been
  urged that no tenant in common is entitled to
  execute improvements upon the property held in
  common, and then to charge his co-tenant in
  common with the cost. This seems to me the true
  view, and I need not further discuss the question
  as to improvements. As to the question of
  repairs, it is to be observed that when two
  persons are under a common obligation, one of
  them can recover from the other the amount
  expended in discharge or fulfilment of the common
  obligation but that is not the position of
  affairs here one tenant in common cannot charge
  another with the cost of repairs without a
  request, and in the present case it is impossible
  even to imply a request.

29
Partition and adjustment

• The only remedy for the improving co-owner would
  be to apply for an order of partition forcing the
  sale of the property
• The court of equity would intervene in order to
  make an adjustment of the property in favour of
  the co-owner that spent money improving the
  property.
• However, while the co-ownership exists, there is
  no remedy and no right to get a contribution
  towards the cost of improvements without an
  agreement beforehand.

30
Equity is defensive

• The High Court in Brickwood v Young (1905) 2 CLR
  387 per Griffith CJ at 396 noted that the equity
  operates defensively ie it only arises at the
  end of the co-ownership as a defence against the
  other co-owners asserting their rights to their
  pre-existing legal share without adjustment.
  Equity steps in to prevent the co-owners who did
  not contribute to the value of the repairs and
  improvements from taking the increased value of
  the property without having contributed to the
  cost of those repairs and improvements.

31
Equity is defensive

• Brickwood v Young (1905) 2 CLR 387 per Griffith
  CJ at 396
• The principle appears to be that the making of
  permanent improvements by one tenant in common in
  sole occupation gives rise to an equity attaching
  to the land, analogous to an equitable charge
  created by the owners for the time being, but
  enforceable only in the event of partition or a
  distribution of the value of the land amongst the
  tenants in common. There can be no reason why
  such a charge should not run with the land in
  favour of purchasers from the person originally
  entitled to it.

32
Equity is defensive

• In Brickwood co-owned land was compulsorily
  acquired by the State. In distributing the value
  of the estate one co-owner of the property sought
  contribution from the other 3 co-owners for the
  value of improvements done by that co-owners
  predecessor in title
• Ie A B and C own land B does renovations. B
  sells his portion to D. On sale of the whole or
  partition, D can get a contribution for the value
  of the improvements carried out by B. Why given
  that D didnt pay for them? Because presumably
  the price D paid for the land was increased by
  the value of the improvements that B did so D
  in effect purchased Bs equity

33
What does the improver get?

• Upon sale of the property subject to
  co-ownership, the improving owner is entitled to
  recover either the cost of the improvements
  undertaken to the property OR the increased value
  of the land attributable to those improvements
  whichever is the LESSER amount

34
Boulter v Boulter

• Boulter v Boulter (1898) 19 LR (NSW) Eq 135 per
  Simpson CJ at 137
• Where an owner of an undivided interest in land
  spends money on improving the property so that on
  a sale .. it fetches an enhanced price, a Court
  of Equity in dividing the proceeds of sale will
  not allow the other co-owners to take their
  shares of the increased price without making an
  allowance for what has been expended to obtain
  that increased value This course of action
  cannot inflict any injustice on the other co
  owners, for it takes nothing out of their
  pockets, it only prevents them putting into their
  pockets moneys obtained by the expenditure of
  another person, unless they recoup him such
  expenditure. In no case can the co-owner who has
  improved the property obtain more than his
  outlay, though such outlay may have trebled the
  value of the property. And, on the other hand,
  the increase in the price obtained is the limit
  of what he can receive, though his actual outlay
  may be far larger.

35
McMahon v Public Curator of Queensland

• McMahon v Public Curator of Queensland 1952 St
  R Qd 197 Macrossan C.J. referred to Leigh v
  Dickeson and said
• ... It is clear, I think from this, that the
  amount to which a co-owner making improvements
  may be entitle against another co-owner in taking
  the accounts in a partition action, is limited to
  the actual cost of the improvements, and if the
  present value of the increment to the property is
  less than the actual cost of the improvements, he
  is further limited to that present value.

36
Squire v Rogers

• Squire v Rogers (1979) 39 FLR 106 Squire and
  Rogers were co-tenants of land in Darwin under a
  perpetual lease. The lease required that in one
  year there be buildings on the land of a total
  value of not less than 15,000.00. In June 1963
  Rogers left Australia and voluntarily left the
  land in the occupation of the Squire with the
  expectation that Squire would spend the money
  necessary to comply with the covenant contained
  in the lease. Squire did so by constructing flats
  and other improvements and carried on a business
  of providing accommodation in flats, rooms and
  caravans and by letting caravan sites. Much was
  destroyed by Cyclone Tracy but then Squire
  rebuilt. Rogers returned to Australia in 1976 and
  commenced proceedings for the sale of the estate
  of the appellant and the respondent and that an
  account be taken.

37
Squire v Rogers

• The defendant estimated that he had spent 100
  000 on the property over the course of the 14
  years. An independent valuation estimated that
  the improvements had only improved the value of
  the land by 15 000 so when the property was
  sold, he was entitled to take 15 000 out of the
  proceeds before the remainder was divided between
  the two co-owners. He received nothing for his
  other 85 000 from his co-owner. There is also an
  interesting aspect of this case relating to rents
  and profits from co-owned land which we will
  return to when we look at entitlement to rents
  and profits.

38
Mortgage Payments

• Improvements are not limited to physical
  improvements and can include mortgage payments
  because mortgage payments increase the equity in
  the property and the amount available for
  distribution
• HW if you want mortgages payments on
  dissolution then you must do equity
• In Ryan v Dries 2002 NSWCA 3 (6 February 2002)
  the Court of Appeal considered issues of
  accounting in respect of occupation, accounting
  in respect of repairs, maintenance, and
  outgoings, including mortgage repayments. Hodgson
  JA at 70 said
• If a co-owner makes a claim for contribution to
  mortgage payments in reliance purely on a legal
  right, with no reliance on equitable principles,
  then it would seem that the co-owner is not
  seeking equity and is not required to do equity.
  However, if the co-owner does rely on equitable
  principles in making such a claim, in my opinion
  the co-owner is seeking equity and is required to
  do equity, no less than if allowance for
  improvements was being sought

39
Occupation Rent

• If one co-owner goes into occupation of the
  property they are not obliged to pay rent or an
  occupation fee to the other co-owners. This is
  because co-owners are seised of the entire estate
  and each has a present right to possession of the
  whole property (along with any other co-owner who
  chooses to occupy it as well).

40
Occupation Rent

• Luke v Luke 36 SR (NSW) 310, John Luke died
  leaving his estate subject to a life tenancy in
  favour of his widow with the remainder to his two
  daughters in equal shares as tenants in common.
  John Lukes widow died in 1915 and Laura, one of
  the daughters, died in 1920. From that date until
  the trial in 1936, Ada (the other daughter)
  occupied the property. In 1929, Ada was removed
  as a trustee of the estate and the Public Trustee
  appointed. In 1932, Ada Luke became a bankrupt
  and in the case before the Court an order was
  sought that the Public Trustee be authorised to
  sell the real estate and that Ada Luke be charged
  an occupation rent.

41
Occupation Rent

• Long Innes C J in Eq. cited the matter as
  follows
• The conclusion to which I have come is that the
  contention that the defendant Ada Luke should be
  charged with an occupation rent in this case is
  neither supportable on principle, nor established
  by authority, and that , in fact, the balance of
  authority is to the contrary.
• I make the order for sale as asked, and declare
  that the defendant Ada Luke is not chargeable
  with an occupation rent.

42
Occupation Rent

• Three exceptions
• the co-owners have contractually agreed amongst
  themselves that the occupying co-owner will pay a
  fee
• One of the co-owners has been excluded from the
  property through an ouster
• One of the co-owners has voluntarily expended
  money on repairing or permanently improving the
  co-owned property and has been in occupation
  during that time. If they seek a contribution
  from the other co-owners towards the repairs or
  permanent improvements, the extent of this
  contribution will be reduced by an occupation fee
  covering their occupation of the property

43
Ouster

• An ouster will occur when one co-owner physically
  excludes or threatens to physically exclude
  another of the co-owners. An ouster must be
  wrongful and suggest that there is a denial of
  the excluded persons title and right to
  possession of the property. Exclusion will amount
  to ouster where one party leaves due to violence
  or threats of violence or where one party
  asserts that the other has no proprietary
  interest in the property. No ouster occurs where
  one co-tenant makes life difficult or
  uncomfortable for the other

44
Ouster

• Biviano v Natoli (1998) 43 NSWLR 695 Ms Biviano
  and Mr Natoli bought a house together in 1979 and
  lived in the house until October 1992. In Oct
  1992 they had an argument, there were threats
  made, and Mr Natoli left. Ms Biviano then got an
  Apprehended Violence Order under the Crimes Act
  1900 which prevented Mr Natoli from occupying the
  premises. Mr Natoli subsequently took court
  action seeking the sale of the house and an
  occupation rent from the time of the AVO. Ms
  Biviano defended the action claiming a. that she
  was the full owner of the house (denying Mr
  Natoli was a co-owner) and in the alternative b.
  that there had been no ouster entitling him to an
  occupation fee.

45
Ouster

• The court dismissed the first argument and found
  that they were tenants in common of the fee
  simple. With respect to the issue of ouster, the
  court said
• The true nature of ouster is that it constitutes
  a trespass by one co-tenant of another co-tenants
  rights in respect of the property an express
  denial of the title and right to possession of
  fellow tenants brought home to the latter openly
  and equivocally would clearly amount to an
  ouster (per Beazley JA at 701 (Powell JA and
  Stein J in agreement)

46
Ouster

• The court held that court order AVO did not
  constitute ouster. Because Mr Natoli was not
  wrongfully excluded from the property but was
  excluded pursuant to a statutory order, Ms
  Biviano had not trespassed on Mr Natolis rights
  to the property. His lack of access to the
  property came through a lawful AVO
• The court found that if Mr Natoli could not
  lawfully have sustained an action in ejectment
  against Ms Biviano, she could not have wrongfully
  excluded him.
• However there was an ouster in the case. The
  court found that an ouster occurred when Mr
  Natoli lodged his claim for sale of the house and
  she defended the action by alleging that he had
  no title to the property. This action amounted to
  a denial of his proprietary interest in the
  property and was an ouster so she had to pay an
  occupation rent for the period from the date of
  the court action.

47
Claim for mortgage payments

• Foregeard v Shanahan (1994) 35 NSWLR 206
  Co-owners of 50 of land.
• She was in sole occupation for 9 years (judge
  notes she installed her paramour).
• During that time she made all the mortgage
  payments on a jointly owed mortgage.
• He sought a partition to sell the house.
• She raised 50 of the mortgage payments as a
  defensive equity in partition.
• Her defensive equity was reduced by 50 of the
  rent the property would have fetched over those
  nine years as an occupation fee this amount
  exceeded the mortgage payments he sought the
  extra
• He was denied on the basis that the occupation
  rent claimed cannot exceed the defensive equity
  raised.

48
Claim for mortgage payments

• Headnote says
• (2) (By Meagher JA with whom Mahoney JA agreed
  Kirby P dissenting) In common law partition and
  similar cases, the rights of one co-owner against
  another co-owner of real property, when one has
  been in occupation and the other has not,
  include
• (a) the payment of an occupation fee by the
  co-owner in possession but only where
• (i) the other co-owner has been excluded from
  occupation or
• (ii) the owner in occupation claims an allowance
  in respect of improvements
• (b) the entitlement to an allowance in favour of
  a co-owner in occupation who effects improvements
  (which is more than mere repairs and maintenance)
  is for the lesser of the value of the enhancement
  of the property and the cost of effecting the
  repairs, where the non-occupying owner seeks an
  occupation.
• (3) Accordingly, in determining the rights of
  joint tenants for the purposes of making orders
  pursuant to the Conveyancing Act 1919, s 66G,
  where one owner has left the jointly owned
  property but has not been excluded from
  occupation
• (a) insurance premiums and expenses for pest
  control incurred by the occupying co-owner cannot
  be claimed as improvements which are recoverable
  from the other owner
• (b) an occupation fee should be charged to any
  occupying owner but the fee should not exceed the
  value of improvements made by the occupying
  owner and
• (c) an allowance should be made in favour of the
  owner making mortgage repayments, water and
  council rates, but such allowance arises from a
  claim for contribution for payments made by one
  debtor of a debt jointly owed and not because of
  the co-ownership of real estate.

49
Calculation of occupation fee

• What are you paying an occupation fee for? The
  occupation fee is to occupy the portion of the
  property that the co-owner does not own. So, if
  one co-owner has 50 of the property, then they
  have to pay half the value of the occupation
  (because you dont have to pay to occupy your
  half). Equally, if the co-owner owns 1/3 of the
  house, then they have to pay an occupation fee
  for their occupation of the other 2/3 of the
  property. An occupation fee is generally
  calculated by reference to the open market rental
  for the property So, if a co-owner owns 60 of
  the property, their occupation fee will be 40 of
  the market rent.

50
Rents and Profits

• In equity, an account for profits lies as part of
  a suit for partition.
• There is also an argument that the equity court
  can still exercise an inherent jurisdiction for
  an account between co-owners. If this
  jurisdiction still exists then the court can
  order only an account of those profits received
  from third parties. The fact that one co-owner
  has had a greater benefit from actual occupation
  of the property does not found an action.
• In an action for an account of profits, a claim
  for the cost of improvements will be dealt with
  by the court making an order for the whole of the
  cost of the improvements made to earn the income.

51
Rents and Profits

• The general rule is that each co-owner is
  entitled to share in the rents and profits of the
  property in accordance with the size of their
  respective shares in the property. (1/3 share
  1/3 rents and profits).

52
Rents and Profits

• Rees v Rees 1931 SASR 78, four brothers owned a
  farm in equal shares as tenants in common. Two of
  the four brothers farmed the land and sought an
  order that they were entitled to the whole of the
  produce from the land and the money derived from
  that produce and that they were not liable to
  account for any portion thereof to the
  defendants.

53
Rents and Profits

• The point raised by the defence in the present
  action that in farming the land the plaintiffs
  did so as trustees for themselves and the
  defendants, is dealt with in the note in Lindley
  on p. 37, nor can one co-owner, by leaving the
  management of the property in the hands of the
  other, impose upon him an obligation of a
  fiduciary character. The authority cited for
  this proposition is Kennedy v de Trafford, 1897
  A.C. 180 (see especially per Lord Herschell at p.
  189), which is cited by Collins M.R. in In re
  Biss, 1903 2 Ch. 40, at p. 57, for the
  statement that tenants in common do not stand in
  a fiduciary relation to each other. There is
  nothing in the circumstances of the present case
  giving rise to any such relationship concerning
  the management of the farm or the produce
  thereof, and it seems clear that the plaintiffs
  were entitled to the declarations and order for
  which they asked.

54
Rents and Profits

• Back to Squire v Rogers (1979) 27 ALR 330. - The
  plaintiff sought an account of the rent earned
  from structures built
• The court agreed with claim for rent but if one
  party voluntarily improves the land, and those
  improvements earn rents or profits, you are only
  entitled to those rents and profits IF you are
  prepared to pay for a share of the improvements
  (per Deane J (Brennan and Forster JJ in
  agreement) at 348)
• In my view, the plaintiff is only entitled
  voluntarily to adopt the benefit of the
  improvements the rents and profits by claiming
  and receiving one-half of any profit resulting
  from their use at the price of being liable to
  contribute to, or make an allowance in respect
  of, their cost over and above the amount included
  in the restricted allowance to which the
  defendant was independently entitled to on
  partition or sale. If she accepts the benefit of
  the profit earned, she must bear her share of the
  burden of earning it.

55
Rents and Profits

• Conclusion the plaintiff couldnt be made to pay
  for the improvements beyond the fact that the
  defendant got a 15 000 property adjustment to
  account for the increased value of the land
  (remembering that he spent 100 000)
• She could not then also seek to collect the rent
  and profits that flowed from the improvements.
• Plaintiff was entitled to a one-half share of the
  rent from the caravans for 14 odd years because
  the caravans stood on unimproved land BUT she
  wasnt entitled to a share of the rent from the
  boarding rooms that the defendant had constructed
  unless or until she forked out for the cost of
  building them.

56
Rates

• Section 560 of the Local Government Act provides
  that co-owners are jointly and severally liable
  for the payment of rates. Also applies where
  there are lessees.