A more recent version of these Joint Tenancy Or Tenancy In Common notes – written by Oxford students – is available here.
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Joint tenancy or tenancy in common?
Distinguishing between the two
Joint tenancy - which automatically grants right of survivorship. Requires: o Unity of possession
? This requires that each owner be entitled to possession of the whole
Not just separate ownership of various parts of the land
Need not occupy the whole o Need only have the right to do so. o Unity of interest
? Joint tenants must have interests of the same type and quantum
E.g. Life estate to R and fee simple to Y = not joint tenancy because not same type
Is impossible for X to have 1/3 and Y 2/3 and still be a joint tenant o At common law this would just be words of severance o In equity = no unity of interest
Thus, on severance, the shares as tenants in common will automatically be of the same size.
? Gift to A and B for life, remainder to B would create a joint tenancy
Since B's life interest is separated from the fee simple remainder. o Unity of title
? Interests must derive immediately from same title
Thus, when JT1 transfers his share o Then the purchaser's title is different from the other JTs o And therefore there ain't a joint tenancy no more - it's been severed. o Unity of time
? Joint interests have to vest at the same time
Thus, there are problems if there is a gift to "the children of D at 21" since D's children will reach 21 at different ages
Smith: isn't really a problem though as it doesn't apply to gifts by will or trusts - o and concurrent interests always take effect under a trust. o Smith: there is scope for relaxing some of these rules
? Unity of interest is necessary in theory to show that the joint tenants own the whole rather than a notional part
And survivorship would make little sense if each party had a different estate in the land (e.g. fee simple and lease)
? Could potentially get rid of unity of time and title, however, which appear to demand immediacy.
Equitable Joint tenancy in common (s.36(2) LPA 1925)). Results in three situations: o 1. Where one of the four unities is not present o 2. Where parties expressly indicate for a tenancy in common or language points to this (words of severance)
? Smith: never been any doubt that an express intention to create tenancy in common will be effective.
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