Unit 8 Co-Ownership

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Real Property 1

Unit 8:
Co-ownership

Definition: exists where two or more persons are simultaneously


entitled to ownership in a single parcel of land.

Nature and Classification of Co-ownership:


-Each co-owner is simultaneously entitled to possession of the whole
land : Wiseman v Simpson [1988] 1 WLR 35
-No co-owner is entitle to exclusive possession of any specific part :
Meyer v Riddick (1990) 60 P& CR
This feature is referred to as unity of possession.

Types: 2: Joint Tenancy and Tenancy in Common


Tenancy denotes holding of the land

How it exists:
Co-ownership can exist in leaseholds and freehold interest

Joint Tenancy:
“A transfer of land to two or more persons as joint tenants operates
so as to make them via-a-vis the outside world, one single owner.”-
Hammersmith and Fulham v Monk [1992] 1 AC 492
Main features:

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1. each co-owner is entitled to the whole


2. right of survivorship:
Right of Survivorship (jus accrescendi):
Definition: on the death of one JT his/her interest will automatically
pass to the remaining JT.
JT cannot pass by will or intestacy as right of survivorship takes
precedence
Survivorship operates automatically upon death of a Joint Tenant

Right of survivorship does not mean JT cannot dispose of property


but it must be done during his or her life time (inter vivos)
Right of Survivorship and Corporations:
At common law: Corporation cannot hold property as JT
Statute: Bodies Corporate (Joint Tenancy) Act 1899: corporation can
now hold property as JT

Benefits of doctrine of survival:


- simplifies probate
- simplifies purchases from joint tenants
- gives effect to wishes of majority on succession

3. four unities must be present


Four Unities: TTIP
All 4 must be present if co-ownership is to take form of a joint
tenancy- AG Securities v Vaughan [1990] 1 AC 417
Unity of Possession:

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All JT equally entitled to the whole land.


No JT can exclude the other from any part of the land.
Unity of possession can be displaced where there is for example an
ouster order requiring one party to leave the premises (usually in
family law circumstances).
See Wills v Wills – one co-owner can oust the other by adverse
possession
TOLATA (1996): Court can statutorily regulate occupation of co-
owned land and has a discretion to order payment from one co-
owner to another.

Unity of Interest
Each JT must have same interest in extent, nature and duration in
the land

Unity of Title:
Each JT must claim title to land under same act or document:
Antoniades v Villiers [1990]

Unity of Time:
Interest of each Tenant must vest at the same time
AG Securities v Vaughan [1990] 1 AC 417

Severance of JT:
Lawrence and Others v Mahfood: Court of Appeal: Jamaica
2010
The Court of Appeal accepted that there are three methods of
severing a joint tenancy –

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(i) by alienation by one of the joint tenants of his share in the


property;
(ii) by mutual agreement between the joint tenants and
(iii) by a course of dealing between the joint tenants.
Gamble v Hankle: Jamaica Supreme Court
A transfer to a third party by one co-owner of his interest in the
property will mean that the other co-owner will own the property
with the third party to whom the property has been transferred as
tenants in common.

SEVERANCE IN EQUITY: Bedson v Bedson [1965] 2 QB 666 (see


dissenting judgment of Russell LJ.)
Effects of Severance:
If severed the interest is converted to TIC
Meaning each JT is entitled to a proportionate share of the property
depending on the number of JT or each can agree in writing as to
the proportion to be held.
Severance By written notice: Kinch v Bullard [1999] 1 WLR 423
Proposal for severance will not suffice: Gore & Snell v Carpenter
(1990)
Severance By agreement: Burgess v Rawnsley [1975] Ch 429
Severance By action of the JT or conduct : example sale of your
share, litigation against JT (Re Drapers Conveyance [1969],
mortgaging your share in equity (First National Security v
Hegerty [1985] QB 850, bankruptcy by one JT
RE Dennis [1996], transfer by ne JT to a third party by gift or by
sale,
For severance by action/ conduct or agreement see Williams v
Hensman (1861)
Severance by operation of law: eg forfeiture one JT kills the other:
Re K [1985] Ch 85
Severance by mutual conduct: effected by any curse of dealing
sufficient to intimate that the interest of all were mutually treated as
constituting a tenancy in common- Williams v Hensman (1861).

TIC:
1. Undivided shares- each tenant has a distinct share in the
property which has not yet been divided among the co-tenants-
Fisher v Wiggs (1700)

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2. No right of survivorship: size of each share fixed once and for


all and is not affected by death
3. Only unity of possession is essential to create a TIC:
Stuartson v Richardson (1844)

Creating TIC and JT


A TIC since 1925 can only exist as an equitable interest
At Law:
1. there is a presumption in favour of JT unless:

(a)- one of the unities was absent:


If there is no unity of possession then the parties take as
separate owners. If unity of possession but no other unity
parties take as TIC.
or
(b)- words of severance employed : express words which show
tenants are
i. to take a distinct share in the property. Words such as ‘in equal
shares’ or ‘share and share alike’ or ‘equally’ or ‘between’ or
‘amongst’ or ‘respectively’ ‘to be shared between’
ii. other provisions such as provision for use of capital or income
or both for maintenance or advancement may imply TIC as
opposed to JT

In Equity:
Equity favours the creation of a Tenancy in common and
presumes that there exists a TIC primarily because of its
grounded principles of fairness and justice over simplification of
probate or conveyance practices.
TIC offered certainty and equality over right of survivorship: R v
Williams (1735) and Re Woolley [1903] – survivorship looked
upon as odious in equity.

Special circumstances in which JT in law compelled to hold as TIC


in equity: Once this is so held, it is classified as a resulting or
constructive trust:

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1. Purchase money provided in unequal shares: Robinson v


Preston
The presumption is that if purchase money provided in equal
shares = JT
If purchase money in unequal shares presumption = TIC
Both presumptions can be rebutted by:
- surrounding circumstances ( e.g. Edwards v Fashion (1712)
or
- evidence of contrary intention (e.g. where court exercises
discretion based on parties conduct in relation to land Stack v
Dowden [2007] 2 WLR 831); or
- The presence of an express agreement where there are
contributions made by parties, may also rebut the
presumption of either a JT or TIC (Springette v Defoe [1992]
1 FLR 388.; or
- The wording of the transfer or conveyance: especially where
such instrument is silent as to the beneficial interest it may
result in a TIC (Pettit v Pettit) . Note however that if the
conveyance or transfer is specific in that it names the legal
and beneficial interest the Court will uphold (Pettit v Pettit and
Gissing v Gissing) unless there is fraud/ mistake or purchasers
did not assent to those terms; or
- Where there is a failure of a purpose it will result in TIC
-
Other circumstances where resulting or constructive trust will
arise:
2. Loan on mortgage: TIC
3. Partnership assets and property acquired for business
purposes: TIC
4. Contracts and executor trusts:
-

ARTICLE OF INTEREST:
EQUITY FAVOURS TENANTS IN COMMON-
EXTRACT FROM HALSBURY LAWS of England > EQUITABLE
JURISDICTION (VOLUME 47 (2014) 5TH EDITION) > 4. PRINCIPLES
OF EQUITABLE JURISDICTION > (6) EQUALITY IS EQUITY > 109.
Equity prefers a tenancy in common.

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109. Equity prefers a tenancy in common.


The preference of equity for a tenancy in common, which in
many cases where transactions have been entered into jointly by
parties has the effect of excluding the right of survivorship,
furnishes several illustrations of cases where the maxim that
equality is equity is applied. Thus, where persons purchase
property with money provided by them in unequal shares and take
the conveyance to themselves jointly, in the absence of special
circumstances1, equity treats the property as belonging to them
not as joint tenants but as tenants in common; and, although on the
death of one the survivor or survivors holds or hold the entirety of
the legal estate, yet in equity the survivor or survivors is or are
considered as being trustees for the personal representatives of the
deceased purchaser to the extent of his share in the purchase
money2. Where, however, parties make a purchase jointly in equal
shares, then, where no contrary intention is shown 3, they are
treated in equity, as at law, as joint tenants4.
The latter rule does not, however, apply where the purchase is
made for the purpose of a joint undertaking or partnership either in
trade or in any other dealing, for the right of survivorship is
incompatible with the relationship of partners5, and in every such
case, whether the purchase money is advanced equally or
unequally, equity treats the parties as tenants in common with
regard to their beneficial interests in the property 6. Where persons
advance money jointly on loan, whether equally or unequally, they
are treated as tenants in common in equity with respect to their
rights, whether the debt is secured by a mortgage 7 or is merely the
subject of a personal contract8; and a joint account clause in a
mortgage is not treated as necessarily excluding several titles to the
mortgage money9. The cases in which joint tenants at law will be
presumed in equity to hold the beneficial interest in property as
tenants in common are not limited to three categories only, namely
purchasers who contributed unequally, co-mortgagees or partners,
since there are circumstances where it will be inferred by equity
that the beneficial interest is intended to be held by the grantees as
tenants in common, as, for example, where the grantees hold the
premises for their several business purposes 10.
Moreover, where property is vested in the parties as joint tenants in
equity as well as at law, the joint tenancy is severed by a contract
for sale11 or other contract for value12. A legal joint tenancy in land
cannot now be severed, but the joint tenancy can be severed in
equity in the same manner as a joint tenancy in personal estate 13.
Open Footnote frame
Reveal footnotes
1 Harris v Fergusson (1848) 16 Sim 308; and see
Cowcher v Cowcher [1972] 1 All ER 943, [1972] 1 WLR 425.

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2 Lake v Gibson (1729) 1 Eq Cas Abr 290; affd sub


nom Lake v Craddock (1733) 3 P Wms 158; 2 White & Tud LC (9th
Edn) 876; Rigden v Vallier (1751) 2 Ves Sen 252 at 258; Robinson v
Preston (1858) 4 K & J 505.
3 Robinson v Preston (1858) 4 K & J 505.
4 Lake v Gibson (1729) 1 Eq Cas Abr 290; affd sub
nom Lake v Craddock (1733) 3 P Wms 158; 2 White & Tud LC (9th
Edn) 876; Aveling v Knipe (1815) 19 Ves 441; Robinson v Preston
(1858) 4 K & J 505.
5 Elliott v Brown (1791) 3 Swan 489n.
6 Jeffereys v Small (1683) 1 Vern 217; Lake v Gibson
(1729) 1 Eq Cas Abr 290; affd sub nom Lake v Craddock (1733) 3 P
Wms 158; 2 White & Tud LC (9th Edn) 876. See also the Partnership
Act 1890 ss 20, 21; and partnership vol 79 (2008) para 116 et seq.
7 Petty v Styward (1631) 1 Rep Ch 57; Rigden v
Vallier (1751) 2 Ves Sen 252 at 258; Morley v Bird (1798) 3 Ves 628
at 631.
8 Steeds v Steeds (1889) 22 QBD 537 at 541, DC.
9 Re Jackson, Smith v Sibthorpe (1887) 34 ChD 732.
10 Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC
549, [1986] 1 All ER 711, PC.
11 Brown v Raindle (1796) 3 Ves 256.
12 Eg such as an pre-nuptial marriage settlement:
Caldwell v Fellowes (1870) LR 9 Eq 410; Re Hewett, Hewett v Hallett
[1894] 1 Ch 362. The joint tenancy is not, however, severed by the
marriage itself unless the effect is to vest the wife's interest in the
husband: Re Butler's Trusts, Hughes v Anderson (1888) 38 ChD 286,
CA.
13 See the Law of Property Act 1925 s 36(2); and real
property and registration vol 87 (2012) para 206
LECTURE NOTES

Law of Real Property I


Concurrent Interests
Where 2 or more persons become entitled to possession of land
simultaneously, they are said to hold
concurrent interests in the land, or to be co-owners.
In the modern law there are 2 types of co-ownership: -
1. Joint Tenancy (J/T)
2. Tenancy in Common (T/C)
Joint Tenancy (J/T)
v J/T occurs where land is conveyed to 2 or more persons without
‘words of severance’, i.e.
without words to show that they are to take separate and distinct
shares.
v The essence of J/T is that from the outside there is one title and
the joint tenants are collectively
regarded as a single owner, but as between themselves they have
separate and equal rights:

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Panton v. Roulstone (1976) 24 WIR 462 per Watkins JA, “…in


beneficial J/T each joint tenant
holds nothing by himself but holds the whole together with his
fellows.”
The intimate nature of joint tenancy is shown by its 2 principle
features: -
1. Right of Survivorship/ Ius Accrescendi
2. The 4 Unities – Title, Time, Interest, Possession
v Right of Survivorship/ Ius Accrescendi
v On the death of one joint tenant, his interest automatically
accrues to the surviving joint tenants,
so that he has no interest to transfer via will or intestacy. This is the
effect of the maxim ‘totum
tenet et nihill tenet’:
Palmer v. Treasurer – Because he did not have any share of his own,
on his death the estate is
“simply…freed from participation by him”.
v A/c to Megarry & Wade – “on the death of one joint tenant, his
interest in the land passes to the other
joint tenants by the right of survivorship (jus accrescendi). This
process continues until there is one
survivor, who then holds the land as the sole owner.”
v At C/L, if there could be no right of survivorship there could be no
J/T, e.g. a corporation could
not therefore be a joint tenant because it could never die. H/e, it is
important to note the effect of
the Bodies Corporate (J/T) Act 1899 – banks and other corporations
now act as trustees.
v Where the circumstances of the death of the joint tenants make
it difficult to determine who died
first, e.g. where all the joint tenants die in an accident, at C/L there
could no right of
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survivorship; the respective heirs of the deceased joint tenants
would inherit the estate as joint
tenants – Bradshaw v. Toulmin.
v H/e, in some jurisdictions Statute resolves the question as to who
is deemed the survivor – LPA
1925 – Succession Act 1981 s.2 (2) Trinidad & Tobago – Succession
Act 1985 B’dos Cap. 239
s.105 – provides that, in the event of uncertainty as to who
predeceased the other, the younger is
deemed to have survived the elder except where the Court decides
otherwise, t/fore the J/T
continues with the heirs of the younger person.
v A joint tenant can avoid the incidence of ius accrescendi by
destroying the J/T and converting it
into a Tenancy in Common (T/C), i.e. by disposing of his share in the
joint estate in an inter

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vivos transaction. Ius accrescendi does not apply to a T/C.


v The 4 Unities
v The 4 Unities of J/T are: - possession, interest, title and time.
v The 4 Unities must be present for a J/T to exist, thus anything
which accords a distinctive and
exclusive claim to property destroys the J/T and makes it a T/C.
v Unity of Possession
- common to all forms of co-ownership;
- each joint tenant is entitled to physical possession of the whole
land;
- no tenant can point to any part of the land as his own, to the
exclusion of the others;
- each tenant is entitled to enjoy the fruits of possession, such as
rents and other profits.
v Unity of Interest
- each joint tenant’s interest in the property must be of the same
extent, nature and
duration, e.g. a freeholder and a leaseholder cannot be joint
tenants;
- the unity of interest requires that any transaction involving a 3 rd
party affecting the
estate can only be effected if all the joint tenants concur and
execute it:
Singh v. Mortimer (1967) 10 WIR 65 – the Ct. App. Guyana held by a
majority that,
since the intention was to sell and convey the whole estate, the
contract was not
effective as it was not signed by the sister (the deceased co-tenant).
Joseph v. Joseph (1961) 3 WIR 78 – in Guyana, a co-tenant whose
interest has not
been quantified is entitled to oppose transport of a property of
which he is a joint
tenant or tenant in common whether in equity or at law.
v Unity of Title
- each joint tenant’s interest must be derived from the same
instrument, i.e. the same
conveyance or will, or where they claim title by Adverse Possession,
they must have
taken possession simultaneously.
3
v Unity of Time
- the interest of each tenant must vest at the same time;
- Unity of Time differs from Unity of Title, for the parties may derive
their interest
from the same document but have their respective estates vested in
interest at
different dates;
- The exception to this requirement is in respect to Wills and Trusts,
e.g. if there is a

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Trust for the benefit of several persons, and some are not yet born
or ascertained, the
existing beneficiaries will hold jointly with the others when they are
born or
ascertained – Mutton’s Case
- A conveyance by a bachelor to the use of himself and the wife he
might marry will
operate to create a J/T on his marriage.
Tenancy in Common (T/C)
v T/C differs significantly from J/T in that: -
1. There is no Right of Survivorship
- On the death of a tenant in common his estate passes to his
devisee or heir. It does
not merge into and enlarge the estate of the surviving co-tenant.
2. The tenants hold in undivided shares
- Each tenant has a distinct fixed share in the property, but the
property is treated as a
single unit.
- The Unity of Possession Doctrine explains the fact that though the
share of a tenant in
common is precisely allocated, he cannot lay an exclusive claim to
any portion of the
property.
- The share of a tenant in common is so distinct and recognized that
on his death it
cannot be altered; it is inheritable and devisable.
- Other than Unity of Possession the other 3 unities need not be
present for a T/C.
Methods of Creation
Joint Tenancy
J/T is created where land is granted to 2 or more persons with: -
(a) Words of severance, e.g. in equal shares; equally; to be divided
amongst; shares
respectively.
Christian v. Mitchell Lee (1969) 13 WIR 302 – the wording of the
devisee presented a
problem of interpretation. On the death of Adeline Edwards, the
administrator of her
estate contended that the words “the shares respectively” referred
to the separate and
distinct shares of Edwards (deceased) and Mitchell-Lee, and t/fore,
the grant created a
T/C with the result that, on the death of Edwards, her share passed
to her estate. This
argument was rejected by the trial judge, who considered the word
share as indicating
the property devised and not a part of it. The Ct. App. Overruled the
decision on the
ground that, “the words bear their usual connotation of division and

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distribution.
4
They indicate the intention of the grantor was that each of his
daughters was to have
a share in the properties conveyed, and that the interests conveyed
to them in the
premises were to be taken by them separately; in effect, that they
were to hold as
tenants in common.”
(b) where equity treats a J/T at law as a T/C.
(c) Where a joint tenant severs his J/T by alienation of a greater
interest, agreement or
course of dealing – Williams v. Hensman.
(d) One of the 4 Unities is missing.
(e) Where equity presumes a T/C, equity will prevail to impose a T/C
on the tenants who
will retain the legal title as joint tenants, but hold the legal J/T
subject to their
interests, which will be held under a T/C.
Tenancy in Common
T/C arises where a J/T does not exist for one or more of the following
reasons: -
(a) There are words of severance, e.g. where the property is
conveyed or devised “to
share and share alike”
(b) Any one of the Unities is missing;
(c) Where equity presumes a T/C;
(d) Where Statute presumes T/C, e.g. Antigua, Real Property
Ordinance 1873, Cap. 289
s.15 – Dominica Real Property Act, 1873 Cap. 219 s.14.
Equitable Presumption of Tenancy in Common
- Whereas the C/L favored J/T, equity has always leaned in favor of
T/C, as equity
preferred the certainty and equality of a T/C to the element of
chance, which the ius
accrescendi of a J/T introduced.
Equity’s abhorrence for J/T is manifested in the following situations
where equity would treat
persons who are joint tenants at law as tenants in common of the
beneficial interest: -
1. Purchase money provided in unequal shares
-where 2 or more persons together purchase land in unequal shares
a T/C of the property is
presumed in equity, and the purchasers take shares proportionate
to the amounts advanced by
each – Lake v. Gibson (1729) 21 ER 1052
-on the death of one of the persons, the survivor will become
entitled at law to the whole
property, but in the eyes of equity he will hold the deceased share

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in trust for the deceased


personal representatives.
Per Robinson P in Panton v. Roulstone, “It is where money is
subscribed in unequal shares,
that equity tends to infer a T/C.”
-where there are equal contributions the purchasers would hold the
property as joint tenants.
Upon the death of one of the parties the survivor would become
entitled to the whole
property beneficially, both at law and equity, for where purchase
money is advanced equally,
equity will presume that the parties intended the ius accrescendi to
apply.
5
2. Loan on Mortgage
-Where 2 or more persons advance money on mortgage, whether in
equal or unequal shares,
equity presumes a T/C.
Morley v. Bird (1798) 3 Ves. 628 – “If 2 people join in lending money
upon a mortgage,
equity says it could not be the intention that the interest in that
should survive. Though they
take a joint security, each means to lend his own and take back his
own.”
- In the event of the death of one of the mortgagees, the survivor
becomes a trustee for the
Pers. Rep of the deceased mortgagee to the extent of the deceased
mortgagee’s share of the
loan.
-This rule is unaffected by the practice of inserting a joint account
clause in mortgages where
2 or more persons lend money.
-The Joint Account Clause is merely a conveyancing device, which
affects the position as
between the mortgagees and mortgagor; it does not affect the
presumption of a T/C as
between the mortgages inter se.
3. Partnership Assets
-Ius accrescendi inter mercatores locum non habet – the right of
survivorship has no place
among merchants.
-Where business partners purchase land as part of their partnership
assets they are presumed
to hold as beneficial tenants in common.
- Although the legal estate may be held on a J/T, in equity the
surviving partners hold a
deceased partners share on Trust for his estate;
Lake v. Craddock (1732) 24 ER 1011 – Where 5 persons joined in
buying some waterlogged

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land with a view to its improvement by drainage, it was held that


they must be presumed to
have acquired the land as tenants in common, as the right of
survivorship was incompatible
with a commercial undertaking.
-The presumption extends to where there is no formal partnership
agreement between the
parties;
Panton v. Roulstone (1976) 24 WIR 462 – Two ladies had purchased
6 parcels of land, taking
conveyances in both their names. There was no evidence as to the
extent of their respective
contributions to the purchase price, but a majority of the Jamaican
Ct. App. inferred that the
women were business associates and were t/fore tenants in
common of the beneficial interest,
and on the death of one, the property did not devolve on the
survivor under the ius
accrescendi. In this case, since the parties had acquired the
properties as joint tenants, and in
the absence of any evidence that they had used the land in the way
of trade or business,
Robinson P was unable to agree that they held the beneficial
interests as tenants in common.
6
Severance of Joint Tenancy
Severance includes any act, which has the effect of destroying the
J/T, and this may involve
partition.
-It is the process whereby a J/T is converted into a T/C; avoidance of
the incident of
survivorship.
-Where Unity of Possession is destroyed there will be partition,
whereby the parties will take
their individual shares and there will be no co-ownership.
-A joint tenant cannot have a separate and distinct share in the land
which is co-owned. He is,
h/e, potentially entitled to an equal share in the property with his
co-owners.
-In the leading case of Williams v. Hensman Page-Wood VC
identified 3 types of
circumstances which will amount to severance: -
1. an act of a joint tenant ‘operating upon his own share’;
2. mutual agreement;
3. course of dealing.
1.) Act of a joint tenant operating under his own share
-In order to bring about severance, the act of the joint tenant must
be of a final and
irrevocable character, which effectively estops him from claiming

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any interest in the subject


matter of the property – Re Wilks [1891] 3 Ch. 59
(a) Alienation
-Total or partial alienation of his interest by a joint tenant is the
clearest type of act
within this head.
-Where a joint tenant alienates his interest inter vivos, his J/T is
severed and the
transferee takes as a tenant in common, since he has no Unity of
Title with the other
joint tenants. N.B. the other joint tenants remain joint tenants, i.e.
severance does not
affect them.
-Severance by alienation also occurs where a joint tenant: -
(a) mortgages his interest – York v. Stone.
(b) becomes bankrupt – Re Rushton.
-Equity regards that as done which ought to be done, thus a J/T of
an equitable
interest will be severed by an enforceable contract to alienate the
interest – Burgess v.
Rawnsley.
Gamble v. Hankle (1990) 27 JLR 115 – P and her husband had been
registered as joint proprietors of
certain land. After her husband’s death P claimed to be solely
entitled to the property by virtue of
the ius accrescendi. However, during P’s husband lifetime he had
purported to convey the land to
the D by a deed of gift. Issue – Did the deed of gift effect severance
of the J/T? Held: - The D/G had
effected severance, notwithstanding that the deed was not in the
form stipulated in the Registration
of Titles Act. A/c to Wolfe J, the D/G was an act which came within
the ambit of the first 3 methods
of severance mentioned by Page-Wood VC in Williams v. Hensman –
an act of a joint tenant
operating under his own share.
7
(b) Mutual Agreement
An agreement entered into by joint tenants to hold as tenants in
common can have the effect of
severance.
-Where the conduct of the joint tenants shows a mutual intention to
destroy the J/T, the Courts will
give effect to that intention: -
Gould v. Kemp – A letter from A to B, in which A engages to secure
for B’s family a moiety of a
fund, in which A and B are interested in as joint tenants, is a
severance of the J/T. Per Brougham LC
relying on Frewen v. Rolfe, “This shows that the bare agreement has

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the force of actual severance


and severance exists even where the agreement is yet to be
performed.”
- A leading example of severance of a J/T by mutual agreement is
the case of:
Burgess v. Rawnlsey [1975] 3 AER 142 – An elderly couple, H and R,
joined in the purchase of a
house, taking a conveyance of the legal title upon trust for sale for
themselves as beneficial joint
tenants, each providing half the purchase price. When the
relationship broke down, H negotiated
with R to buy her out, and there was evidence that R had orally
agreed to sell her interest to H for a
specified price. R later repudiated the agreement and demanded a
higher price, but H died b/fore the
negotiations could continue. HELD: - H had effectively severed the
J/T before his death and his
estate was accordingly entitled to a ó share in the proceeds of sale
of the property.
Unilateral Declaration
It is somewhat unclear whether Unilateral Declaration by one of the
parties is enough for severance.
The authorities are unsettled on this issue.
Old C/L position: -
-Mere declaration is not effective to sever a legal J/T – Lord
Hardwicke in Patriche v. Powlet (1740)
-Per Lord Harlow in Perkins v. Baynton, “I do not know that a
demand will sever a J/T.”
-Re Wilks, Child v. Bulmer – It was held that proceedings for the
payment of a share in a fund would
not amount to severance if the proceedings did not end in an order
of the Court, which could not be
obtained before the death of the petitioner.
-Nielson-Jones v. Fedden [1974] 3 AER 38 – A wife who had a J/T with
her husband in their
matrimonial home signed a document authorizing the husband to
sell the home and employ the
proceeds to his new home. HELD: - The memorandum could not be
read as a severance of the joint
beneficial interest, which could not be severed by a unilateral
declaration of intention to sever; per
Walton J, “a mere unilateral declaration does not shatter any of the
essential Unities.”
Contrast Cases
Hawkesley v. May [1956] 1 QB 304 – A letter from a joint tenant to a
co-tenant requesting that his
dividends be paid into a particular account constituted severance.
Re Draper’s Conveyance [1969] 1 Ch. 486 – The institution of legal
proceedings for a determination

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Real Property 1

of question of between husband and wife and a prayer for an order


that the matrimonial property be
sold and the proceeds distributed in accordance with their
respective interests, supported by an
8
affidavit in which the wife claimed to entitled to a ó share, could
effect severance. Per Plowman J,
“A decision by one of a number of joint tenants of his intention to
sever operates as a severance.”
Burgess v. Rawnsley [1975] 1 Ch. 429 – The agreement was
sufficient to sever the beneficial J/T,
even though it was not specifically enforceable.
There are statements in the various judgments which tend to
support Hawkesley v. May and Re
Draper’s Conveyance as establishing that a unilateral declaration is
sufficient to sever a J/T. Lord
Denning and Lord Brown both subscribe to the view that a unilateral
declaration is sufficient to
sever a J/T. However, Lord Pennycuick did not accept such a
proposition.
On the balance of the conflicting authorities, it can be gleaned that
Lord Denning’s view is the
preferred view, and this derives support from Snell’s Principles of
Equity:
-Gibson v. Walton (1992) 28 Barb. LR 113 and Stuart v. Kirton
(1994) Barb. LR – a joint tenant’s
filing of a writ and seeking an order of sale of the property and
equal distribution of the proceeds of
sale, is sufficient for severance.
(c) Course of Dealing
-Severance under this head does not require any express act of
severance, nor any agreement or
declaration of trust.
-All that is required is ‘a consensus b/w the joint tenants, arising in
the course of dealing with the
co-owned property, which effectively excludes the future operation
of a right of survivorship’ –
Gray, Elements of Land Law.
Other Methods of Severance
(d) Acquisition of Greater Interest
-Where a joint tenant subsequently acquires an additional estate in
the land, the unity of
interest b/w himself and the other joint tenants is destroyed and the
J/T is severed.
Wiscot’s Case (1599) 76 ER 555
(e) By Homicide
-Where a joint tenant kills a co-tenant he is denied the right of
survivorship. Equity will not
allow him to benefit from his own crime through the Doctrine of Ius

TDG Aug 2016 17


Real Property 1

Accrescendi.
-At law the ius accrescendi will allow him to have the whole estate,
but in equity he would
hold the legal title subject to the beneficial interest of himself and
the estate of his victim.
Note:- In Belize and the UK there is no Severance as Tenants-In-
Common cannot exist as a legal
estate.

Partition
-Under the C/L it is permissible for all the co-owners of full age to
partition the land if they all agree.
-The Unity of Possession will be destroyed and each of them will own
his allotted piece exclusively.
-Partition is only possible where they all agree, and the agreement is
sealed.
Note: - The Partition Acts 1539 and 1540 (UK) conferred a statutory
right to bring an action to
compel partition by means of a writ of partition.

-The Act has been adopted by most of the Caribbean territories;


where there is no local legislation conferring jurisdiction for
partition, the Acts can be invoked as statutes of general application.
The effect is that each co-owner will obtain a precise share out of
the proceeds of sale.

TDG Aug 2016 18

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