This is an extract of our Joint Tenancy Or Tenancy In Common document, which we sell as part of our Land Law Notes collection written by the top tier of Oxford students.
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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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