Co-Ownership

Question 1

What are the two characteristics of a tenancy in common?

Answer 1

There are two defining characteristics to tenancies in common:

1. There is no right of survivorship between tenants in common.
2. The only unity which exists between the tenants in common is the unity of possession. Tenancies in common do not require that all of the four unities be fulfilled. Instead, there is only one requirement: that each of the tenants in common has a right to possession of the land.

Question 2

What are the characteristics of a joint tenancy?

Answer 2

First, joint tenancies provide a right of survivorship. Since a joint tenant is not regarded as having a distinct share in the co-owned land, he/she is not able to dispose of his or her interest by will on death, nor will it pass on intestacy if no will is made.

The Four Unities
A joint tenancy necessarily requires the presence of the “four unities” in order to exist (AG Securities v Vaughan.

The four unities are unities of possession, interest, title and time.
1. Unity of possession: the occupants must possess rights over the same piece of property.

2. Unity of time: the occupants’ rights must have arisen at same time (i.e. they all contracted to possess the property at the same time).
3. Unity of title: the occupants’ rights must have arisen from same transaction (i.e. from a single agreement).
4. Unity of interest: The interest of each and every joint tenant is exactly the same in terms of extent, nature, and duration.

Question 3

What is the case that governs the four unities?

Answer 3

AG Securities v Vaughan

Question 4

How can a joint tenancy be severed?

Answer 4

• severance by written notice;
• severance by an act of a joint tenant ‘operating upon his own share’;
• severance by mutual agreement;
• severance by mutual conduct;

Question 5

What are the limitations of severance?

Answer 5

• There can be no severance by will
• Only a beneficial/equitable interest can be severed—a legal estate must be held by way of joint tenancy.
• no severance through illegal activity - murder

Question 6

What act governs Severance by Written Notice?

Answer 6

Law of Property Act 1925, s.36(2)

Question 7

When will a written notice to serve become fully effected?

Answer 7

Notice to sever a joint tenancy by a tenant must be given to all the other joint tenants:
* by leaving it at their last known address or
* by posting it to that address by registered or recorded delivery

(Law of Property Act 1925, section 196

Recorded Delivery Service Act 1962,

Question 8

What case governs written notice?

Answer 8

Kinch v Bullard.

Question 9

Why does a party operating upon his own share sever a joint tenancy?

Answer 9

This creates severance because it has the effect of destroying one of the unities essential to the joint tenancy: that of title.

Question 10

What case governs severance by mutual agreement

Answer 10

William v Hensman

Question 11

What case states that mutual agreement must be communication and agreement for it to be affected as, without this, severance has not occurred.

Answer 11

Carr v Isard.

Question 12

Mutual conduct - course of dealing.

Which case states that severance must be immediate?

Answer 12

Harris v Goddard

Question 13

Mutual conduct - course of dealing.

What case states that separating a living-space into separate and self-contained areas does not indicate an intention to sever

Answer 13

Greenfield v Greenfield

Question 14

What statue and case relates to killing a partner for sole ownership?

Answer 14

Forfeiture Act 1982, is a law which prevents a criminal from benefitting from their crime in any way.

CASE: Re Kenny - The court modified the forfeiture rule, under the Forfeiture Act 1982, to allow the widow to retain the property. The court cannot modify the rule in cases of murder, but this was a case of manslaughter so the rule could be modified!