Lecture5 – severance

Definition
 The process by which a JT is converted into a TIC

Why
 The process of separating and distinct beneficial share in the land
 Why/when severance may be appropriate
 Breakdown in relationship
 Change in circumstance
 Severance can only take place during the lifetime of the JT
 Carr v Isard - A will does not sever the JT
 S. 36 (2) LPA 1925 there can be no severance in law but only in equity

Requirements

Notice in writing
S. 36 (2) LPA 1925
 Must be during their lifetime
 Notice must be given to all JTs
Kinch V Bullard
 W was terminally ill
 4th August – w sent notice to H by post
 5th August – H has heart attack
 6th August – severance letter delivered
 W destroys the letter
 H died
 At the time of death was H a JT or a TIC
 The letter had been posted, sent, and delivered
 Why was the decision important?
 If severed H was a TIC at the time of death
 Each party would enjoy 50% share of the property
 If not severed H would be a JT, would own 100% of the property

Held
 S.36 (2) notice of severance must be given to all the JT’s
 S.196 LPA 1925 – written notice of severance is deemed to be severed when it is left
at the JT last known address

Re 88 Berkley Road NW9 (1971)

 X sends notice of severance by registered post

 X received the letter and then hid it
 X subsequently died at which Y discovered the severence
By conduct operating on their own share
 Where a Jt acts as if they were entitled to a share
 Severs as it destroys the unity of the title
 This is a unilateral act (no agreement required)
 Examples
 Sale to third party
 Mortgage

Mutual agreement

 Agreement
 Of all Jt’s
 Mutual agreement
 Not a discussion, argument, or negotiation
 Agreement in writing is not required
 Burgress v Rawnsley

Mutual conduct
 The conduct of the parties may indicate that they are mutually treating the JT as
having been severed
 There must be a course of conduct that shows that the parties intended to treat their
shares as separate and distinct

Forfeiture
 When one JT kills another JT, the JT is severed and thus survivorship will not operate
 Reasoning – the wrongdoer may not benefit from their crime

Note:
o severance by one JT does not sever the whole joint tenancy: the other JTs remain
JT’s
o If a JT severs by selling his/ her equitable interest the legal estate will be
unchanged unless a legal transfer is affected
o If the number of legal owners reduce to below four, an owner in equity does not
automatically become an owner in law

Fiduciary
o A person who is obliged to discharge faithfully a responsibility of trust of another
o Must avoid self-dealing
o Examples
o Parent to child
o Lawyer to client

Trustees- Specific powers

 Trusts and appointment of trustees Act 1996
 S.6 (1) – powers of the absolute owner (including sale, lease and mortgage)
 S.6 (5) - in exercising their powers, trustees have to regard to the rights of the
beneficiaries
 S.11 – trustees are required to consult with beneficiaries and give effect to their
wishes
 S.13 (3) – trustees may impose ‘reasonable’ conditions on any beneficiary in
occupation

Consent provisions
 An express trust may include express provisions that the permission of named
persons is required to authorise the trustees to exercise functions
 This is a method which beneficiaries have some control
 If a trustee were to dispose of the property ( sale or mortgage) without the necessary
consents, the trustees would be liable for breach of trust

Rights of the Beneficiaries

/:”’
Consultation
s. 11 (1)-
 a. Trustee of the land has a duty to consult with beneficiaries of full age
And
 b. so far as consistent with the general interest of the trust, give effect to the wishes
of those beneficiaries

Dispute resolution
s. 14 TLATA
 if a dispute arises regarding a trust of land a trustee or anyone who has interest in a
property may apply to the court (locus standi)
 s.14 (2) – the court may make such order as it thinks fit

s. 15- factors that the court must consider when deciding an application under s.14
 the purpose of the trust
 the continued existence of the purpose of the trust
 the welfare of the minor in occupation
 the circumstance and the wishes of the beneficiaries

what is the purpose of underlying the trust

 where property was brought for a certain purpose.
 If that purpose is continuing or capable of being fulfilled, the court will not make an
order for sale