W6 Coownership Flashcards
What is joint tenancy?
When multiple parties (up to 4) are treated as a single owner of the whole property (no shares)
What is required for joint tenancy?
Four unities (possession, interest, time, title)
Authority: AG Securities v Vaughan
What is the right of survivorship?
If one joint tenant dies, their interest dies with them rather than being passed through will/intestacy
Auth: Re Caines deceased
Does severance affect both legal title and equitable title?
No - legal title can only be joint tenancy. Severance only operates on equitable title.
s1(6) LPA 1925
Legal estate cannot exist in a share of land - i.e. legal title must be joint tenancy
s36(2) LPA 1925
Legal interest cannot be severed
Equitable interest can be severed by notice in writing
What is the result of severance?
Equal shares per person as tenants in common (beneficial interest)
Legal title remains joint tenancy
Does severance require the elimination of any joint tenancy?
No, can operate severance on one party and leave remaining parties in JT
Goodman v Gallant 1986
Facts: Couple purchased a house in sole name of husband, but was agreed between them that wife would have a half share in the beneficial interest. Couple separated, husband transferred the freehold to wife and new partner as beneficial joint tenants. Dispute over whether wife now owned 3/4s of beneficial interest (her original half plus half husband’s share). Court found that when the freehold was transferred, she was named as joint tenant with new partner, so she had half beneficial interest.
Significance: Where a conveyance into joint names expressly declares the parties as joint tenants, then on severance a tenancy in common of equal shares is created.
What are the methods of severance?
Written notice
Other acts/things
Mutual agreement
Mutual conduct
Physical division of land
What are the requirements for written notice of severance?
Irrevocable, immediate intention to sever (Re Draper’s Conveyance)
Correctly served on all beneficial JTs (Kinch v Bullard)
Re Draper’s Conveyance
Facts: Husband and wife bought house as joint tenants, later divorced. Wife applied for order of sale, with proceeds to be divided equally between herself and husband. Order was granted but husband died while still living at the house. Question was whether the wife had severed - her application for order of sale was found to be an irrevocable, immediate intention to sever.
Significance: Example of severance by written notice.
Harris v Goddard 1983
Facts: Married couple getting divorced. Application for divorce included hoping for a transfer or settlement of the property. Husband was killed in a car accident before the divorce was finalised. Question was whether severance had occurred - court said severance had not occurred as the wording was not immediate enough.
Significance: Written severance requires immediacy.
Kinch v Bullard 1999
Facts: Husband and wife, wife was considering divorce so sent a notice of severance by post. Husband was admitted to hospital before receiving it, and wife changed her mind and destroyed it. Court found that notice had been validly served under s196 LPA and was irrevocable.
Significance: Severance is irrevocable.
s196 LPA 1925
How to serve a notice (e.g. to place of last abode, etc)
What other acts/things can amount to severance?
Unilateral act operating on own share
Total alienation - give interest to another
Patrial alienation (e.g. mortgage)
Involuntary alienation (e.g. bankruptcy)
Specifically enforceable contract to alienate
Maybe - commencement of litigation
Williams v Hensman 1862
Facts: Money on trust for 8 children was invested. One child asked for an advance on their share, the other 7 indemnified the trustee against claims for any shortfall from the advance. Had the effect of severing the joint tenancy into tenancy-in-common.
Significance: Example of severance through “other acts”
First National Securities v Hegerty 1985
Facts: Husband and wife in joint tenancy. Husband took out a mortgage on the home, forging wife’s signature. Husband left the country, lender pursued charge over house, wife petitioned for divorce. Court found that applying for the mortgage was a unilateral act upon husband’s own share, and so severance occurred then. Order for sale was permitted, but wife was entitled to half.
Significance: Unilateral act (of fraud) as severance.
Re Gorman 1990
Facts: Married couple, joint tenancy. Husband became bankrupt, lender began proceedings. Wife payed arrears and continued to pay instalments. Later, husband applied for an order for sale, contending that they had severed and were tenants in common. Judge ruled that wife was sole beneficial owner. Husband successfully appealed.
Significance: Bankruptcy is involuntary alienation.
Nielson Jones v Fedden
Facts: Married couple break up, agree to sell the marital home so husband can buy a smaller house. Wife signed a memo authorising sale and proceeds from it to be used towards a new house. Both corresponded about their respective share of proceeds from the sale. Husband died before sale completed, wife sought declaration that she was solely entitled to the house by survivorship. Court agreed that the memo did not sever, and conduct did not indicate final severance.
Significance: Unilateral declaration of intention does not sever a joint tenancy.
Burgess v Rawnsley
Facts: Man and a woman bought a house together as JTs. Man bought it intending to marry the woman, the woman thought they were just going to be roommates. Never moved in together, agreed verbally that man would buy out woman. Woman backed out, man died, and woman tried to claim house by survivorship. Court ruled agreement to buy her out was severance.
Significance: An oral agreement of one JT selling his interest to the other JT is severance, but the sale agreement is not enforceable.