This coursework question relates
to co-ownership problem scenario. The purpose of this coursework is to identify
all legal and equitable titles to the property which were held between the
parties at the date of purchase, how it has changed over the years and to be
able to determine whether or not the house should be sold.
Co-ownership is a term used to
describe those forms of ownership in which two or more persons are
simultaneously entitled in possession to an interest or interests in the same
property. There are two types of co-ownership: the joint tenancy, and the
tenancy in common.
Joint tenancy is a form of
co-ownership in which each ‘joint tenant’ is wholly entitled to the estate or
interest which is the subject of the co-ownership. A joint tenancy can subsist
in a legal estate, an equitable estate in land, or both in legal and equitable
estate. In the context of co-ownership, only legal title binds the whole world.
Joint tenant could be described more accurately as a person who holds no
distinct share in the property, but is together with the other joint tenant or
tenants invested with the total interest in the land. The essential features of a joint tenancy are that joint tenants have a
right of survivorship (jus accrescendi) and that the ‘four unities’ must be
present before a joint tenancy can be said to exist. The four unities comprise
of possession (each tenant is as much entitled to possession as another),
interest (each joint tenant is wholly entitled to the whole), title (each
tenant must derive his title from the same document) and time (each tenant
invests in the interest at the same time).
Tenancy in common is a shared
tenancy in which each holder has a distinct, separately transferable interest
in the property and each party has the right to alienate, or transfer
the ownership of their ownership interest. This can be done by deed, will, or
other conveyance. The distinguishing characteristic of a tenancy in common is
that the right of survivorship does not apply. This means that each tenant in
common can dispose of his own share. Another essential feature in tenancy in
common is that only one of the four unities (unity of possession) need to be
present between tenants in common.
As established by the Law of Property Act 1925 s. 1(6) the only form of
co-ownership that can exist at law is a joint tenancy. However, the equity
continues to recognise that co-owners may be either joint tenants or tenants in
common. As stated per s. 34(2) Law of Property Act 1925, law recognises only up
to four co-owners. If there is more than four co-owners, the first four will be
named on legal title and subsequent co-owners will take their share in equity.
Following our problem scenario, we are told that all parties have contributed equal proportions to the
purchase price. It can be said that Amy, Penny, Bernadette and Priya are
first four co-owners named in the conveyance, and can be recognised as joint
tenants of the property in law and equity. However, Mia as a fifth co-owner cannot
be recognised as joint tenant in law, but can be recognised as joint tenant in
In Law: Amy+ Penny+
Bernadette+ Priya= joint tenants in law = 100%= potential share 25% each
In Equity: Amy+ Penny+
Bernadette+ Priya+ Mia= joint tenants in equity= 100%= potential share 20% each
1. The first problem we must look at which changes the
situation is Penny’s attempt to call others and subsequently sent a letter by
first class post to let them know that she would like to sell her interest in
the property. This problem question concerns the law of severance. Severance is
the process by which an equitable joint tenancy can be converted into an
equitable tenancy in common. In other words, when we talk of severing the joint
tenancy, we are talking about severing the joint tenancy in equity and this can
only occur inter vivos and not by will.
The law relating to severance is to be found both in statute and at
common law. Under s. 36 (2) of the Law of Property Act 1925, any equitable
joint tenant may give notice in writing to the other joint tenants by post to
the last known address (s. 196 (3) of the LPA 1925) or in person (s. 196 (4) of
the LPA 1925) and this actually results in a severance in equity as per Burgess v Rawnsley 1975 3 All ER 142
and Kinch and Another v Bullard and
Others 1998 4 All ER 650. Severance by written notice may be unilateral
and thus no consent is needed from the other joint tenant as seen in case of Harris v Goddard (1983) 1 WLR CA.
common law, per case of Williams v Hensman
(1861) 1 J 546 established that severance may occur by three methods.
Firstly, where one joint tenant does ‘an act operating on their own share’
(such as a sale of his interest). Also, known as ‘unilateral conduct’.
Secondly, where joint tenants agree to sever by ‘mutual agreement’ (this acts
to sever the shares of all those agreeing, even if the agreement is never
carried out or is actually unenforceable- per Burgess v Rawnsley 1975 and Wallbank
v Price 2007 EWHC 3001). And thirdly, by ‘mutual conduct’ (where the
party’s conduct is of a kind sufficient to evince an intention no longer to be
part of a joint tenancy).
In addition to statutory notice in writing and the three forms of
severance in Williams v Hensman (1861) case, we also recognise the severance by
operational law. This is a severance by killing a joint tenant where one cannot
profit from unlawful killing as per Cleaver
v Mutual Reserve Fund Life Association
1892 1 Q.B. 638 and Re K (deceased)
1985 Ch. 85.
In this instance the means of severance that Penny acts upon is the
statutory law method of severance by giving notice in writing as per s. 196 (3)
Law of Property Act 1925. Penny has decided to send the letter by first class
post where she stated that she would like to sell her interest in the property.
The severance is effective if there is evidence that the notice was duly posted
to the other joint tenants (as per LPA 1925 s. 196), even though it was not
actually read (or even received) by them as proven in cases of Re 88 Berkeley Road 1971 NW9 Ch 648 and
Kinch v Bullard 1998. As per our
scenario, the letter was lost due to postal strike and unfortunately has never
arrived. It can be argued that due to postal strike, the letter was lost and
the severance did not take place as it was never delivered.
2. We then hear of the next important
point that Mia mortgaged her interest in the property to Greedy Bank. Following
cases of Ahmed v Kendrick (1987) 56
P&CR 120, Banker’s Trust v Namdar (1997) EWCA Civ 1015, First National Bank
v Achampong 2003 EWCA Civ 487 and s. 63 of the LPA 1925, Mia as a joint
tenant in equity will be sufficient to mortgage to the bank such interest as
she does control- in other words, she can mortgage her equitable interest.
Without doubt, this mortgage of her equitable interest is ‘an act operating on
her own share’ within Williams
v Hensman (1861) and means that Mia severs her share of the equitable
interest. She is now a tenant in common, albeit mortgaged to the bank.
In Law: Amy+ Penny+
Bernadette+ Priya= joint tenants in law = 100%
In Equity: Amy+ Penny+
Bernadette+ Priya = joint tenants in equity= 80%
– tenant in common= 20%