Co-ownership and Severance Flashcards
What is severance?
It is the conversion of a joint tenancy into a tenancy in common
Severance of a JT and the effect
Legal Joint Tenancy –> CAN’T sever at law (s.36(2) LPA 1925)
Beneficial Joint Tenancy –> CAN sever at equity to then become a tenancy in common
EFFECT:
> The beneficiaries become entitled to equal portions of the property value (regardless of any initial unequal contributions)
> Goodman v Gallant 1986
Summary of Severance
Only applies to a JOINT TENANCY (not a tenancy in common).
Only applies to a joint tenancy in EQUITY (a joint tenancy at law cannot be severed).
On severance they get an EQUAL portion (regardless of the initial unequal contribution).
If +2 joint tenants, only the one who severs becomes a tenant in common of his ‘share’.
If +2 joint tenants, the one who severs only gets one equal portion of the whole (regardless of initial contribution)
Methods of severance
Statutory severance: notice in writing under s.36(2) LPA 1925
Common law severance: 3 methods in Williams v Hensman 1861
Severance be operation of law – forfeiture
> e.g. if 1 JT murders the other –> Severance automatically occurs and doctrine of survivorship would not apply otherwise it wouldn’t be fair
Statutory Severance: Notice in writing under s.36(2) LPA 1925
Where any tenant desires to sever the joint tenancy, he shall give the other joint tenants a notice in writing
Issue 1 - Form
> Has to be writing but doesnt matter how its done (Draper’s Conveyance / Quiqley v Masterson)
Issue 2 - Content
> evidence of an intention to sever e.g. if they talk about their own share
> need for immediacy
Issue 3 - Service
> have to address al joint tenants
> method of service - s.196 LPA
S.196(4):
> Notice can be sent by registered or recorded delivery to
> the last known place of abode or business of the person to be served
s.196(3) LPA 25
> Notice can be left at, or affixed to,
> the last known place of abode or business of the person to be served
What about ordinary first-class post? see Kinch v Bullard [1999] 1 WLR 423
Lack of receipt / Change of mind
Lack of receipt by the addressee
> Re: 88 Berkeley Road [1971] Ch 648
> Kinch v Bullard
Change of mind by the sender
> Kinch v Bullard
> Couple who live together –> wife wants a divorce and she gets cancer all of a sudden and doesn’t want her husband to get everything through right of survivorship
- So postman delivers letter of severance but then husband gets heart attack next day so wife wants to revoke severance and destroys letter however severance has occured once pushed through letter box
DOESN’T matter if there is a lack of receipt or change of mind by the reader –> once severance has occurred, IT HAS OCCURRED
Common Law Severance: 3 methods in Williams v Hensman 1861
Common law methods of severance under William v Hensman 1861:
An act operating on one’s own share –> e.g. ‘unilateral conduct
Mutual agreement –> burgess v Rawnsley 1975
Mutual conduct –> Greenfield v Greenfield and Burgess v Rawnsley
Unilateral Conduct (act operating on ones own share)
An act of / one joint tenant / operating upon his own beneficial share / by a legally enforceable act
E.g. sale, mortgage, bankruptcy order
Writing a will is not unilateral conduct and does not bring about severance
Mutual Agreement
An agreement between all the joint tenants indicating a common intention to sever –> Burgess v Rawnsley [1975] Ch. 429
> Man and women buy a house together, don’t want to get married so they orally agree that he will buy out her share of the house but there is no enforceable act of writing it just an oral agreement
They had agreed an price but she revokes the agreement because she wants more money but then nothing happens for 3 years and then he dies
So had severance occurred? There was severance by mutual agreement because there was a point at time where both tenants had a common intention to sever
Course of Dealings (Greenfield v Greenfield)
A course of dealing which shows that the interests of all the joint tenants were mutually treated as constituting a tenancy in common.
Greenfield v Greenfield (1979)
> Two brothers who buy a house for them and their mother to live there
> After their mothers death, both boys get married and they decide to turn their house into two separate dwellings for each brother and their wives
> One brother dies so his wife claims that she inherits his half of the house under the brothers will
> But the other brother says there is no severance, so the doctrine of survivorship applies and the other brothers gains the rest of the house
> Does dividing up the property demonstrate severance? The court held there was no severance so the surviving brother gets the right of survivorship and inherits the dead brothers belongings
> Dividing up the house was all about convenience and not actually altering the ownership of the property
