Severance of Joint Tenancy PDF

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Severance of Joint Tenancy- short revision notes...

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Severance of Joint Tenancy 2: Williams v Hensman (1861): - An ‘ act operating upon’ one’s share - doing something with the land, as if you have a share that you can sell to someone else. - Mutual agreement - if all owners agree to hold land as tenants in common. - Course of dealing/ conduct - co-owners acting a certain way that is sufficient to suggest that they are all treating the co-ownership as a tenancy in common not a joint tenancy. 1. -

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An act operating on one’s share. Doing someone with your share of land. Eg, by sale or bankruptcy By Mortgaging: Bedson v Bedson [1965] 2 QB 666 By transferring or mortgaging whole, forging co-owners’ signatures: Ahmed v Kendrick (1987) 56 P & CR 120 and First National Securities v Hegerty [1985] QB 850 - : The transfer of the mortgage was only effective in relation to the share of the co owner who had carried out the transaction, had the effect of severing the joint tenancy so that the co-owners who hadn’t been involved in their signatures forged. Their shares were unaffected by these transactions. Mere declaration of intention to sever ineffective: Corin v Patton (1990) 169 CLR 540 unless within a written notice. The ‘act’ in question must comply with usual formality requirements. EG. s 53 (1)(c) Law of Property Act 1925, s 2 Law of Property (Miscellaneous Provisions) Act 1989. - has to be written in writing or written and signed.

2. Mutual agreement - Severance by mutual agreement requires agreement of all co-owners - No need for writing - no specific form but must agree to a course of action which would result in or reflect a tenancy in common now rather than a joint tenancy. - Burgess v Rawnsley [1975] Ch 429 - Women makes an offer to buy her share, she agrees to sell but then withdraws this by asking for a bigger amount. - Authority to the point that an oral agreement can have severing effect. - you are looking for an agreement that shows that the parties no longer intend the co-ownership to operate as a joint tenancy. 3. Mutual conduct/ course of dealing - Nielson-Jones v Fedden [1975] Ch 222 - All co-owners must have acted in way that shows they see themselves as entitled to specific shares. - Gore and Snell v Carpenter (1990) - long negotiations about a property but no severance found because one of the parties had never committed to any particular outcome.

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Hunter v Babbage (1994) 69 P & CR 548 - In Hunter both the parties were contemplating sale and unequal division of the proceeds of sale. And that was held to be enough to amount to a course of conduct which had a severing effect. Saleeba v Wilke [2007] It confirms the idea that inconclusive negotiations do not constitute severance by mutual agreement. Inconclusive negotiations are probably not, in most cases, enough to establish severance by course of conduct or course of dealing, unless there are clear arrangements arising from the negotiations which show that the parties are behaving as tenants in common, not joint tenants.

Operation of Law: Forfeiture Forfeiture Act 1982 s1(1) - a person who has unlawfully killed another person, is precluded from benefiting from that act. - One joint tenant unlawfully kills the another, the surviving joint tenant would continue to hold the legal estate by survivorship, but would be holding the legal estate on trust for himself and his now deceased co-owner as tenants in common in equal shares. - Severing equitable joint tenancy. Effect of severance Goodman v Gallant [1986] Fam 106 - hold land in equal shares. Barton v Morris [1985] 1 WLR 1257 - The parties can make it clear that they want to hold the land as tenants in common, in particular shares, rather than an equal shares. Can not be effected by will....