Co-ownership

(A) Joint Tenancy vs Tenancy in Common

a. Join tenants
i. The tenants together own the whole interest
ii. There is right of survivorship.
iii. 4 unities: unity of possession, interest, title and time.

b. Tenancy in common
i. The tenant has undivided share in the property which is distinct
from that of other tenant in common.
ii. There is NO right of survivorship.
iii. Only enjoy unity of possession.

(B) 4 Unities
a. Unity of interest: All joint tenants have the same interest for the same
duration.
b. Unity of title: All joint tenants acquire their interest under the same
document or act. Thus, if one joint tenant wants to assign his interest to
another person, all joint tenants must join in the assignment.
c. Unity of time: Joint tenant must acquire the interest at the same time.
d. Unity of possession: each tenant is entitled to possession of the whole and
cannot exclude co-owners from any portion of the property.
i. If a co-owner is oustered, he is entitled to damages (perhaps
occupational rent). But if he moved out voluntarily, he cannot ask
for compensation.
ii. Owners of a multi-storey building enjoy exclusive use of his flat
through a covenant given in DMC.

(C) Elements of joint tenancy

a. 4 unities
b. Express declaration in the Assignment Form

(D) Presumptions if there is no expressed declaration

a. Presumption of co-ownership at law
i. Originally, common law presumes joint tenant. After 1984, CPO
s9 presumes tenancy in common saved for trustees and personal
representatives.

b. Presumptions of co-ownership in equity

i. In general, equity follows the law. However, equity would
presumes a tenancy in common when:
1. The purchase price was paid in unequal shares.
2. There is a commercial relationship e.g. partners (Credit Ltd
v Jack Chia MPH Ltd (1986) AC 549)
 3. Lenders who lent money for mortgage is presumed to
receive the property as tenant in common.

(E) Severance of Joint Tenancy

a. Severance can only happened during the lifetime of the joint tenant. Thus,
a joint tenant cannot leave his property to others and severance in his will.

b. Severance at law need to be registered (LRO s3(2)); otherwise the tenants’

legal interests are void against subsequent bona fide purchaser for value of
the legal estate

c. Severance at equity is unregisterable and the tenants’ equitable interests

bind everyone except subsequent bona fide purchaser for value without
notice of the unwritten equitable severance.

d. Severance at law (CPO s8(1)(a)&(b)):

i. A notice served by one join tenant on the others (the notice must
be in writing (CPO s62). Such a notice would also serve the join
tenant in equity (CPO s8(2)); or

ii. An instrument
1. A notice must show an immediate intention to sever.
(Harris v Godard (1983) 3 All ER 242)
2. A notice needs not to be signed by the parties (Re Draper’s
Conveyance (1969) 1 Ch 486)
3. An application for sale of the JT property in a divorce
proceeding was held as a notice to severance (Re Draper’s
Conveyance (1969) 1 Ch 486)

If sever at law
Joint Tenant Tenancy in Common
Legal Ownership

Equitable Ownership

Joint Tenant Tenancy in Common

 e. Severance in equity
i. By an act operating on a joint tenant’s share (i.e. the joint tenant
deal with his shares as he is a tenant in common) E.g.
1. A joint tenant mortgaged his interest. (Siu Chin-wah v
Malahon Credit Co Ltd (1987) HKLY 592)
2. On bankruptcy and his asset was vested in the trustee in
bankruptcy. (Re Pavlou (1993) 3 All ER 955)

ii. By mutual agreement

1. An agreement showing the common intention to sever such
as an oral agreement to sell (Burgess v Rawsley (1975) Ch
429)

iii. By course of dealing

1. Negotiations between the co-owners for the sale by one of
them of his share to the other (Burgess v Rawsley; Core
and Snell v Carpenter (1990) 60 P)

If A dies, B becomes the

Joint Tenant sole legal owner by right
(A & B) of survivorship. B sells
Legal Ownership the flat. Can A’s
representative share the
proceed of sale?
Equitable Ownership
If sever in equity

Joint Tenant Tenancy in Common

A’s representative A’s representative can

cannot share the proceed share the proceed