Co-ownership of land Pt 2

Severance of Joint Tenancy

Severance of an equitable joint tenancy to turn it into a tenancy in common.

Key statute: Section 3(4) Administration of Estates Act 1925
Severance cannot be effected by will. 

There are 2 ways to sever a joint tenancy:

-By notice of writing

-In equity

By notice of writing

Key statute: Section 36(2), LPA 1925 - a Joint tenant may give notice of intention to sever all other joint tenants.

Any notice must be in writing (s.196(1), LPA 1925) and giving notice means serving notice (s.196(3) and (4), LPA 1925)

In Equity

Key Definition: Severance in equity - 'Such acts or things as would, in the case of personal estate, sever the tenancy in equity. (Williams v Hensman(1861).

In Williams v Hensman Page-Wood VC said that there are 3 methods:

1.An act of any one of the parties operating on their own share,e.g. a sale of the joint tenant's beneficial interest or the bankrupcy of a joint tenant. In equity a sale will take place as soon as there is a specifically enforceable contract to sell.

Example- X sells his beneficial interest in Blackacre to W. This severs X's interesr in equity and so W is a tenant in common.

When an equitable joint tenant sells his interest he does not cease to be a holder of the legal estate, it is unaffected. So , in the above example, X will only cease to hold the legal estate if there is a transfer to the other joint tenants.

2. Mutual agreement. In Burgess v Rawsley [1975] an oral agreement by one joint tenant to purchase the share of the other operated to sever eventhough the contract was specifically enforceableas there was nothing in writing. (Hunter v Babbage [1994]).

3.Any other course of dealing, which shows that the interests of all were mutually treated as constituting a tenancy in common. In Burgess, Sir John Pennycuick said it includes negotiations which , although not resulting in agreement, indicate a common intention to sever.

Denning MR said it included a course of dealing in which one party makes it clear to the others that he 'desires that their shares should no longer be held jointly but to be held in common' - But pennycuick's view seems to represent the law.

Forfeiture  -If one joint tenant kills another, the right of surveyorship should not operate, as this would allow the murderer to benefit from his act.

Other consequences of co ownership: Trust of land

Trusts of land
Once the question of who holds the legal title has been dealt with, one can then turn to the question of terms on which it is held. The answer is that under the Trusts of Land and appointment of trustees Act 1996 (TLATA), A trust of land automatically comes into existence whenever the legal title to land is held by joint tenants (S.36(1) LPA) as amended by the TLATA.

Note: Until TLATA came into force land held on…