Land Law I

Module Code: LLBM2009

By: Aishath Riyasa
Topic 3: Ownership of Land
[Part II]
  You can only sever an equitable joint tenancy
(Law of Property Act 1925, section 36(2)).
 A joint tenancy can be severed and the
Severance relationship can be converted with the other co-
owners into a tenancy in common
 In case one of the joint tenants wishes to sell or
mortgage his/her ‘share’ of the property, the
joint tenancy must be severed.
 Methods of
severance

Methods of
severance:
By statutory Such other
Notice acts or things
  Under s 36(2) of the LPA 1925, any equitable joint
tenant may give notice in writing to the other joint
By statutory tenants of his intention to sever the joint tenancy.
notice:  The giving of such notice results in a severance of that
co-owner’s interest, and they become a tenant in
common (Burgess v Rawnsley (1975)).
 As long as there is evidence that the written notice was
sent (for example, by registered post), it seems that it
does not have to be received by the other joint tenants
to be effective to sever (Re Berkeley Road (1971)).
  A notice was sent by one joint tenant to the other
and arrived at the receiver’s address.
Kinch v
 He never saw it, having suffered a heart attack, and
Bullard (1998) the notice was destroyed by the sender (hoping to
benefit from the survivorship she had sought to
end!).
 The court held that the notice was served by
delivery— even if not seen—and that it could not be
withdrawn after service. Severance had occurred.
Notice may  Re Draper’s Conveyance (1969): a summons
claiming sale of the co-owned property was held
take many to constitute written notice of severance under s
forms 36(2).
 A mere oral agreement not to sever can prevent
any later act of severance by written notice
taking effect.
  The property had been conveyed expressly to three people as
White v White equitable joint tenants and there had been an oral agreement not to
(2001) sever.
 A clear attempted severance by written notice under s 36(2) was
held ineffective on the ground that the oral agreement supported the
original declaration of the owners as joint-tenants.
 The point of severance is that it can destroy an expressly declared
equitable joint-tenancy, so perhaps the case is best explained on the
basis that the person wishing to sever was estopped from so doing
by their conduct (the oral agreement) because it would have been
unconscionable in the circumstances to permit that severance.
  Articulated and emerges from the words of s 36(2)
 The section talks of severance by written notice
where land ‘is vested in joint tenants beneficially’.
limitation to Seems to encompass only those situations where the
legal and equitable joint tenants are the same people.
statutory  So, will not cover where for example, A and B hold
severance on trust for A, B, C and D as joint tenants.
 However, this limited interpretation of s 36(2) has not
been adopted, and statutory severance is presumed to
be available for all joint tenants, whether they are also
legal owners or not (Burgess v Rawnsley (1975)).
 The common law recognises three other ways in which it is
possible to sever the joint tenancy.

Williams v Hensman
mutual conduct

mutual agreement

by an act operating
on one’s own share’
  This occurs when one equitable co-owner seeks to deal with ‘their
share’ of the land, so manifesting an intention no longer to be part of
the joint tenancy.
By an act  Occurs where the equitable owner sells their share to a third party,
mortgages it in favour of a bank, or becomes bankrupt, so that their
operating on property becomes vested in the ‘trustee in bankruptcy’ (Re Dennis
(1992)).
his own share  Attempting to deal with the legal title by forging the consent of the
other legal owners in fact operates to transfer that person’s equitable
interest, so also effecting a severance (Banker’s Trust v Namdar
(1997)).
 But, leaving one’s ‘share’ in a subsisting joint tenancy by will can
never constitute severance, as the right of survivorship takes
precedence over testamentary dispositions (Gould v Kemp (1834)).
 For this method of severance to be effective, the ‘act’
operating on the joint tenant’s share must be valid and
enforceable, unlike ‘mutual agreement’.
 The ‘act’ which effects the severance must be one which is
valid according to the formality rules for that type of
disposition.
 All dispositions of an interest in land must be in writing (s 2
of the Law of Property (Miscellaneous Provisions) Act 1989).
 This method requires an ‘act’ operating on one’s own share,
not an unenforceable intention to sever.
 The result of such a severance is: the ‘share’ of the person
severing passes to the person with whom he has contracted.
  If two or more joint tenants agree among themselves to terminate
the joint tenancy, those agreeing are taken to have severed the joint
tenancy and constituted themselves as tenants in common.
 This agreement need not take any specific form, and it need not be
in writing.
Mutual  It need not be enforceable, and may be inferred from the
surrounding circumstances.
agreement  For example, severance by this method may occur when the co-
owners agree on the precise distribution of property on the
breakdown of their relationship (Re McKee (1975)).
 However, the agreement must contemplate an intention to sever the
joint tenancy (that is, the ownership), and not merely amount to an
agreement as to the use of the property (NielsonJones v Fedden
(1975)).
  Mutual conduct is a flexible and shifting category that is intended
to express the idea that severance may occur because the joint
tenants, by their conduct in relation to each other, have
demonstrated that the joint tenancy is terminated (Williams v
Hensman (1861)).
 Although very similar to mutual agreement, the point here is that
the parties have not agreed to sever—formally or informally— but
have so acted that it is clear that the continuance of a joint tenancy
would be inconsistent with their intentions.
Mutual
conduct  Examples of mutual conduct
 physical partition of the land so that each co-owner is barred from
the other’s portion,
 the writing of mutual wills and
 negotiations between the joint tenants as to disposal of the
property.
  Dixon M, Chapter 4: ‘Co-ownership’.

Reading  Mackenzie J & Phillips M, Chapter 16 ‘Co-Ownership’.

Thank you