Severance of joint tenancies (Co-ownership and Trusts)- FS Flashcards
(14 cards)
What is severance of a joint tenancy?
Severance is the process by which a joint tenancy is converted into a tenancy in common, so that each party holds a distinct share in the property.
Does severance affect legal ownership of a property?
No. Severance affects only beneficial ownership; legal title remains jointly held and registered in both names at the Land Registry.
Three Recognised Methods of Severing a Joint Tenancy (from Williams v Hensman)
- Unilateral act on one’s notional share
- Mutual agreement to sever
- Mutual conduct indicating intent to sever
What is meant by a “unilateral act” in the context of severance?
It refers to a joint tenant taking individual action to sever their share, such as making a will or serving a written notice of severance.
How is severance by notice achieved under s.36(2) Law of Property Act 1925?
By serving a written notice expressing an immediate, unconditional desire to sever the joint tenancy.
What makes a notice to sever legally effective?
It must:
- Be in writing
- Express immediate and unconditional intent
- Be received or deemed received by all joint tenants
Definition OF Mutual Agreement?
A written or oral agreement between all joint tenants to sever the joint tenancy and hold distinct beneficial shares.
Definition of Mutual Conduct
Behavior that implies a common intention to sever, even without a formal agreement (e.g., negotiations to sell one’s share).
What is the effect of serving a conditional notice to sever?
It is ineffective. The law requires the intention to sever to be immediate and unconditional.
Events that Automatically Sever a Joint Tenancy?
- Murder of a co-owner
(Forfeiture Rule, Forfeiture Act 1982) - Bankruptcy of a co-owner
- Charging order on the property
What is the effect of bankruptcy on joint tenancy?
It severs the joint tenancy. The bankrupt’s beneficial share passes to the trustee in bankruptcy, creating a tenancy in common.
What is the Forfeiture Rule and how does it affect joint tenancies?
If a joint tenant unlawfully kills the other, they are prevented from benefitting from the death. This causes automatic severance.
What is the effect of a charging order on joint tenancy?
It severs the joint tenancy and protects the creditor’s interest by converting the share into a tenancy in common.
What wording is recommended for a valid severance notice?
Example: “I hereby sever the joint tenancy with immediate effect.” Conditional or future-intent language is insufficient.
