Summary
Law 1122 Co-ownerhsip Summary
- Module
- LLB Law - Land Law
- Institution
- Newcastle University (NCL)
Comprehensive and detailed land law summary on co-ownerhsip *Essential!! *For you!!
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Revision notes on Co-ownership and Trusts in landCo-ownership is where two or more people enjoy the rights of ownership of land at the same time.
There are two types of co-ownership- Joint Tenancy and Tenancy in common. It may be a freehold
estate or a leasehold estate.
Joint Tenancy is where all owner own all of the land together and there is no question of individual
owners being entitled a specific share. A Joint Tenant cannot unilaterally dispose of his/her interest in
land, unless he or she severs the Joint Tenancy.
Tenancy in common is where each of the owners holds his/her individual share of the land. The owner
can do whatever they please with it e.g. sell, gift, leave it in a will. They can quantify a share but
cannot point to a specific part and claim it is there since it is a undivided share in the land. Each
owner can however claim they own a certain percentage but the land will always remain undivided.
Ownership is split into two titles- legal and equitable. Legal title can only be held as a joint tenancy
whereas an equitable title can be held as either joint tenancy or tenancy in common.
s.1(6) Law of Property Act 1925 states that co-owners can only ever hold the legal title to
property as JOINT TENANTS.
s.36(2) LPA 1925 states that it is not possible to sever the joint tenancy of a legal title.
S34(2) LPA restricts the number of legal owners to four. So if 5 people bought a house and diecide to
hold the legal and equitable title as JT. Only the first four names that appear on the land register will
be seen as the registered legal owners.
Why would you want to be Joint Tenants in Equity?
The right of survivorship – known as ‘jus accrescendi’
Note: Section 184 LPA 1925:
“In all cases where, after the commencement of this Act, two or more persons have died in
circumstances rendering it uncertain which of them survived the other or others, such deaths
shall (subject to any order of the court), for all purposes affecting the title to property, be
presumed to have occurred in order of seniority, and accordingly the younger shall be deemed
to have survived the elder”
Protects co-owner against your death
Makes conveyancing simpler
Avoid probate (tax) implications
Right of survivorship (Jus accresscendi) operates immediately on death so if one of the JT dies, the
surviving tenant(S) absorb his or her interest in the property. This means an interest in JT cannot be
passed on in a will. It is an automatic process- no conveyance or documents required.
For a joint tenancy, you are required to have four unities: Possession, Interest, Title, time. (PITT)
Possession: each joint-tenant must enjoy the right to possession simultaneously with the other
joint-tenants, and no joint-tenant can have exclusive right to possess the whole property
Interest: the interest of all joint-tenants must be identical in duration, extent, and nature
Title: all joint-tenants must have equal title to the property, created by the same act,
transaction or instrument
Time: the interest of all joint-tenants must vest at the same time and for the same period
If the four united are not present equity will infer a tenancy in common.
, Why have a tenancy in common in equity?
Each owner is free to do what they want with their share.
No right of ownership so the share must be passed on in the normal way on death or in
writing during the co-owner’s life
Severance is when someone who initially chose to be a joint tenant in equity decides that they have
changed their mind and takes steps to alter their position and become tenants in common instead.
Once severed it is not possible to reverse the situation and become joint tenants in equity again.
Severance of Joint Tenancy in law is not possible. s36(2) LPA 1925 ‘No severance of a joint tenancy
of a legal estate, so as to create a tenancy in common in land, shall be permissible, whether by
operation of law or otherwise’
Severance of JT in equity can be done at any time. Severance converts the status of a co-owner from
JT to a TC. This means that survivorship will no longer operate upon death, instead the property will
be passed according to will or intestacy. It can affect the whole joint tenancy or part of the JT. It can
either affect the whole joint tenancy or part of the JT. So it is possible that only the co-owner who
severs his/her JT becomes a TC, and the remaining owners continue to hold as Joint tenants.
The share of property on severance is proportionate to the number of JT so it will be equal shares
regardless of the initial contribution to the purchase price.
Five ways to sever:
Statutory Severance: written notice s36(2) LPA 1925
Three Common Law methods: Williams v Hensman (1861)
Forfeiture Act 1982: unlawful killing
S36(2) LPA 1925 “where… any tenant desires to sever the joint tenancy in equity, he shall give to the
other tenants a notice in writing of such desire…”
It does not need to be in any particular form of writing- Re Draper’s Converyance [1969], where a
summons claiming the sale of the co-owned property was held to constitute as a written notice of
severance. Quigley v Masterson, an application to the court of protection was seen as a notice of
severance.
Intention must be immediate and unconditional- Harris v Goddard.
Service of a written notice cannot be withdrawn once it has been delivered. This was seen in Kinch v
Bullard where a wife sent her husband a notice effective to sever the matrimonial joint tenancy but
husband died and she destroyed the letter and died herself. Courts said that the letter did constitute
severance so the estate would be shared equally between their heirs.
Neurberger J said that notice once a notice has been served it cannot be withdrawn because it
was a matter of policy and allowing it to be withdrawn could be potentially unfair. But, per curiam, a
withdrawal communicated before the notice was served may be effective.
If the letter has gone through the letterbox ( Re 88 Berkeley Road [1971] Ch 648) irrelevant that it
didn’t reach the addressee. If it has been posted, then the notice is effective. Re-88 Berkeley Road, a
letter had been posted but never reached the addressee but since the letter was never ‘returned
undelivered’, the notice of severance was sufficient enough to have served properly.
It does not necessarily have to be read or even received
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