Land Law - Concurrent Interests

Front 1

That there is no tenancy in common at law is provided by...

Back 1

...s1(6) LPA 1925

Front 2

Equity presumes a joint tenancy, given that the four equities are satisfied. The four equities are:

Back 2

Possession, time, interest and title.

Front 3

Equity presumes a tenancy in common in three situations:

Back 3

Business partnership (Malayan Credit), mortgages, unequal contribution.

Front 4

Malayan Credit v Jack Chia-MPH

Back 4

Equity presumes a tenancy in common in a business partnership, and the courts are not precluded from making more presumptions of tenancy in common.

Front 5

Four ways in which a joint tenancy may be severed:

Back 5

Williams v Hensman (Page-Wood VC):

1) Acts operating on one person's share.

2) Mutual agreement.

3) A course of dealing sufficient to intimate that the interests were being treated as tenancies in common.

S36(2) LPA

4) Written notice.

Front 6

The requirements for severance by written notice are:

Back 6

Existing legal estate (Nielson-Jones v Fedden)

Declaration clear, irrevocable, communicated to all parties and immediate (Harris v Goddard)

Front 7

Is private declaration of intent to sever sufficient to sever?

Back 7

No.

Front 8

Why is an attempt to sever by will not valid?

Back 8

Because at that stage the interest has already passed.

Front 9

White v White

Back 9

Agreements not to sever are recognised and enforced.

Front 10

How does Prichard distinguish severance by written notice and mutual agreement from other forms of severance?

Back 10

The unities are shattered by the severance rather than causing the severance.

Front 11

Goodman v Gallant

Back 11

If a conveyance declares the beneficial interests, that is conclusive.

Front 12

Burgess v Rawnsley - Browne LJ

Back 12

A course of dealing can be oral

Front 13

Burgess v Rawnsley - Sir John Pennycuick

Back 13

A common intention, rather than binding agreement, is required for severance by course of dealing.

Front 14

What is the course of authority for whether or not a unilateral declaration is sufficient for severance by course of dealing?

Back 14

Nielson-Jones v Fedden - it's not.

Denning LJ in Burgess v Rawnsley - it is.

Harris v Goddard - it's not.

Front 15

The test for severance by course of dealing is whether... (and source)

Back 15

...over the years the parties have dealt with their interests as though they were interests in common (Gore & Snell v Carpenter).

Front 16

Carr v Isard

Back 16

It does not suffice to establish a course of dealing that each party in fact intends to sever, there must be a shared intention or understanding.

Front 17

Examples of implied written notice:

Back 17

Re Draper's Conveyance (request for sale of property constituted notice)

Davis v Smith (transfer of endowment policy with intention to sever with other party receiving 'lion's share' of property)

Quigley v Masterson (application for sale and split of proceeds)

Front 18

Examples of what is insufficient to constitute implied written notice:

Back 18

Harris v Goddard (court order for divorce insufficient as it wasn't immediate)

Gore & Snell v Carpenter (parties agreed to sever but yet to confirm specifics)

Front 19

Kinch v Bullard

Back 19

Severance by written notice is effective from time of delivery, and after, the giver of notice cannot change their mind.

Front 20

s34(2) LPA

Back 20

Where land is conveyed as a tenancy in common, it will be conveyed as a joint tenancy in law and a tenancy in common in equity, with the holders being trustees and beneficiaries. If there are more than four grantees, the first four will be trustees.

Front 21

Bull v Bull (Denning LJ)

Back 21

The rights of a tenant in common: each entitled to possession and use and enjoyment in a proper manner. Neither can turn out the other but if one should take more than his proper share the injured party can bring an action for an account. Ousting is trespass.

Front 22

Why did Walton J (in Nielson-Jones v Fedden) criticise the decision in Re Draper's Conveyance that institution of legal proceedings could amount to a notice of severance? How does Prichard respond to this?

Back 22

Because the institution of legal proceedings is revocable. Prichard argues that the notice itself is not revocable.

Front 23

How does Smith propose we might be able to abolish the joint tenancy? What is the problem with this?

Back 23

Leaving the remaining share by will to the survivor. The problem is that survivorship issues most often occur on unexpected death where there may not be a will.

Front 24

What are Thomson's four reasons for abolishing the joint tenancy?

Why does Prichard disagree with him?

How does Thomson respond?

Back 24

1) joint tenancy creates issues when the initial arrangement goes sour

2) severance is uncertain

3) there are special problems in cases of murder or manslaughter

4) there is no reflection of contribution proportions

Prichard responds by saying that reflecting contribution proportions could lead to more initial arrangements going sour (but Thomson reminds him that there is already a wide jurisdiction to alter interests);

the murder issue could be resolved through changes to the Forfeiture Act;

the clarity issue could be resolved through clarifying legislation, but it is unclear how this would be done;

the initial arrangement shouldn't go sour too often and may be solved by legislation allowing severance by will (but Thomson says that this either produces injustice where notice is not required or unnecessary judicial fact-finding if it is).