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Law Notes Land Law Notes

Joint Tenancy Or Tenancy In Common Notes

Updated Joint Tenancy Or Tenancy In Common Notes

Land Law Notes

Land Law

Approximately 987 pages

Land Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB land law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

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Joint tenancy or tenancy in common?

Distinguishing between the two

  • Joint tenancy – which automatically grants right of survivorship. Requires:

    • 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

          • Need only have the right to do so.

    • 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

          • At common law this would just be words of severance

          • 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.

    • Unity of title

      • Interests must derive immediately from same title

        • Thus, when JT1 transfers his share

          • Then the purchaser’s title is different from the other JTs

          • And therefore there ain’t a joint tenancy no more – it’s been severed.

    • 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 –

          • and concurrent interests always take effect under a trust.

    • 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:

    • 1. Where one of the four unities is not present

    • 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.

        • All you need is unity of possession

          • Court will also seize on language that purports to divide the property in order to show no intention of joint tenancy

          • Cos joint tenancy requires ownership of the whole, not the part.

    • 3. Where equity presumes tenancy in common from special circumstances

      • Three situations where equity presumes tenancy in common because right of survivorship is so odd

        • Equity doesn’t directly reject common law joint tenancy

          • But insists that joint tenants hold on trust for themselves as tenants in common in equity

      • Partners in a business

        • Survivorship generally seen as inconsistent with business relations.

          • However, courts will accept proof that survivorship was intended if compelling enough.

          • Malayan Credit Ltd v Jack Chia-MPH Ltd [1986]:

      • Mortgagees

        • This might be specified as a joint tenancy, but Law will more often than not hold that it a tenancy in common –

          • survivorship is out of place because the transaction is business in nature.

      • Unequal contribution

        • Where co-owners have contributed to the purchase price in unequal shares

          • There is a presumption of tenancy in common rather than joint tenancy.

            • This is more owing to the fact joint tenancy requires equal shares, and the trust analysis determines that the parties have unequal shares.

        • However, in family context

          • Stack v Dowden

            • Baroness Hale: So long as registered in joint names, rebuttable presumption = joint tenancy, regardless of unequal shares.

Severing a joint tenancy

  • Williams v Hensman (1861):

  • Page Wood VC

    • Act of any one of joint tenants on his own share

      • Requirements:

        • Smith: should any of the four unities be lost, then the joint tenancy will cease to exist

          • E.g. X sells share to Y, meaning Y has no unity of title with Z.

          • OR X and Z agree to partition which bits of the land they are allowed to possess

        • No need for any other parties to be involved.

        • Can also occur when bankruptcy, mortgage,

          • And possibly lease.

      • Effect:

        • Joint tenancy comes to an end – tenancy in common in equity may result

        • Where more than two parties, if X, Y and Z are joint tenant and X sells up to T,

          • Y, Z and T aren’t joint tenants

          • BUT Y and Z remain joint tenants of the two thirds remaining.

    • Mutual Agreement

      • Requirements

        • Equity allows severance on its own terms, even when none of the unities have been shattered.

          • Agreement has to be mutual between all parties.

        • Burgess v Rawnsley [1975]: two JTs agreed orally to sever tenancy and Y to buy X out. Unfortunately, X pulled out and then Y died.

          • Lord Denning MR (min): oral declaration is sufficient to sever joint tenancy as long as communicated to other party.

          • Sir Pennycuick (maj):

            • Mutual agreement is one way to sever joint tenancy

              • But there is a separate way to do so by the course of dealing.

        • Smith: interesting that this goes against need for land interests to be in writing, even in equity.

    • Any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common

      • Smith: this has given rise to the greatest number of controversies...

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