Severance Flashcards
This case sets out three ways in which a joint tenancy may be severed: by an act of one of the joint tenants operating on his share (e.g. sale); by mutual agreement; or by a course of dealing by which the shares of all the joint tenants have been affected.
Williams v Hensman
Generally, the severed share is quantified on the basis of equality, irrespective of the initial contributions made to the purchase price of the property. This principle of equality is subject to contrary intention.
*Goodman v Gallant *
An affidavit in support of a divorce petition, requesting a sale of the matrimonial home and the division of proceeds between spouses amounted to effective severance by written notice. It indicated sufficient immediacy, in wanting a sale to occur as soon as possible, and by requesting her share of sale proceeds, the wife showed that she considered herself to have a distinct and realisable share in the property, separate from that of her husband.
Written notice must convey an irrevocable and unequivocal intention to sever immediately, whether express or implied.
Re Draper’s Conveyance
A divorce petition merely requesting for such orders to be made in respect of the matrimonial home as may be considered just, did not amount to effective written notice. There was insufficient immediacy, as the request related to future court orders that may be made, and insufficient intention to sever, as any future court order may not have involved any severance.
Written notice must convey an irrevocable and unequivocal intention to sever immediately, whether express or implied.
Harris v Goddard
Notice has been validly served within section 196(3) of the LPA 1925 when it has been posted to and delivered at the intended recipient’s last known place of abode, even though it might not come to his attention. The fact that the sender later picks up the notice and destroys it did not invalidate the service.
Kinch v Bullard
Severance by mutual agreement - The agreement must be between all of the beneficial joint tenants.
It is possible for one co-owner to be both a joint tenant and a tenant in common in equity of the same property.
Wright v Gibbons
Mortgaging one’s beneficial interest in the co-owned property amounts to partial alienation and thus an act operating on your own share (i.e. severance).
First National Securities Ltd v Hegarty
Oral negotiations between co-owners for one to buy the other out, where an agreement had been reached as to the price to be paid, although later revoked with a higher price being demanded, was held effective severance. In reaching the initial agreement, although later revoked, both parties had indicated a common intention to have separate shares in the property and that the right of survivorship should no longer operate between them.
When severing by mutual agreement, the agreement need not be in a specifically enforceable contract. Any agreement must convey a intention to preclude the future operation of the right of survivorship.
*Burgess v Rawnsley *
A mere agreement to sell a jointly owned property, or indeed accept a subject to contract offer on that property, would not itself sever the joint tenancy. Such action would be inconsistent with a joint tenancy continuing and applying to the sale proceeds. However, in this case, by indicating that sale proceeds form the property (and other assets) would be divided in a balanced way, and by seeking legal advice, the parties had done enough to demonstrate a common intention to sever.
*Davis v Smith *
Where one joint tenant kills another, he cannot benefit from the right of survivorship.
*Re Crippen *
A joint tenant’s written notice was deemed effectively served when it was sent by recorded post to the co-owned home, even though it was signed for by the severing tenant and had never been read by the intended recipient. The fact remained that it could be proved written notice had arrived at the last known place of abode of the other, non-severing joint tenant and that was sufficient.
Provided written notice has been effectively served, it need not be read by the intended recipient(s) to be effective.
Re 88 Berkley Road
An example of an implied common intention to sever could be where joint tenants agree that upon death their interests should pass to their child.
McDonald v Morley
Conversion and separate occupation was not inconsistent with the continuation of the joint tenancy.
Greenfield v Greenfield
Involuntary alienation, for example bankruptcy, falls into the category of acting on your own share. Upon bankruptcy, the severed share will vest in the bankrupt’s trustee in bankruptcy.
Re Pavlou (A Bankrupt)
