Co-ownership - Severance of joint tenancies

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Description: Gain a deep grasp of legal processes for severing joint tenancies, vital for success in the SQE1 FLK2 exam and property law practice.

Overview

Severing joint tenancies plays a key role in property law, affecting ownership rights, estate planning, and legal tactics. For those studying for the SQE1 FLK2 exam, thoroughly knowing this subject is necessary, linking important concepts in co-ownership, equity, and land registration. This guide breaks down severance methods, their legal outcomes, and practical use, offering the knowledge needed for both exam success and future legal work.

Distinguishing Co-ownership Types

Before exploring severance, it's important to grasp the differences between joint tenancy and tenancy in common:

Joint Tenancy

Defined by the "four unities":

  1. Possession
  2. Interest
  3. Title
  4. Time

The main feature is the right of survivorship, where a deceased tenant's share goes to the surviving tenant(s), ignoring any will.

Tenancy in Common

  • Each tenant owns a specific share of the property
  • Shares may be equal or unequal
  • No right of survivorship; a tenant's portion is part of their estate upon death
  • Shares can be handled separately

Methods of Severance

Severance changes a joint tenancy to a tenancy in common, removing the right of survivorship. The Law of Property Act 1925 and case law outline several methods:

1. Written Notice

  • Based on Section 36(2) of the Law of Property Act 1925
  • Allows one tenant to sever by notifying others
  • Must state a clear, immediate intent to sever
  • Takes effect when served

Case law example: In Harris v Goddard [1983] 1 WLR 1203, a will draft aiming to leave property to someone other than the joint tenant was not enough for severance.

2. Mutual Agreement

  • Can be explicit or inferred from actions
  • Involves all joint tenants
  • Intent to sever must be clear

Case law example: Burgess v Rawnsley [1975] Ch 429 showed that agreeing to sell property and split the proceeds was enough to sever the joint tenancy.

3. Unilateral Act

  • Must be decisive and inconsistent with continuing a joint tenancy
  • Examples: selling or mortgaging one's share

Case law example: First National Bank v Achampong [2003] EWCA Civ 487 found that a charging order against one tenant’s share severed the tenancy.

4. Course of Dealing

  • Actions must be clear and mutual
  • Imply intent to treat interests separately

Case law example: Williams v Hensman (1861) 1 J & H 546 stated that a clear course of dealing can indicate severance.

5. Operation of Law

Certain legal events automatically sever a joint tenancy:

  • Bankruptcy
  • Unlawful killing

Case law example: Re Palmer (deceased) [1994] Ch 316 determined that the forfeiture rule applies if one tenant kills another.

Impact of Legal Acts on Joint Tenancies

Bankruptcy

  • Automatically severs the joint tenancy
  • Bankrupt’s share goes to the trustee in bankruptcy
  • Other tenants remain as tenants in common

Unlawful Killing

  • Severs joint tenancy if one tenant kills another
  • Killer doesn’t benefit from the victim's share

Practical Applications and Exam Relevance

Example 1: Severance by Written Notice

Alex notifies Beth of his intention to sever their joint tenancy immediately. This validly creates a tenancy in common.

Exam focus: Identify elements of a valid notice and its immediate effects.

Example 2: Severance by Course of Dealing

Charlie and David split rental income unequally and make separate property decisions.

Exam focus: Evaluate if this behavior severs the joint tenancy through clear and mutual conduct.

Example 3: Interaction with Land Registration

Emma severs the joint tenancy with Fiona but doesn't register it.

Exam focus: Understand the consequences of not registering a severance notice and its effect on land registration.

Conclusion

Understanding severance of joint tenancies is vital for the SQE1 FLK2 exam and legal practice. Key points to focus on:

  1. Differentiate between joint tenancy and tenancy in common.
  2. Know the five methods of severance.
  3. Be aware of automatic severance in specific situations.
  4. Understand the impact of severance on land registration.
  5. Analyze complex scenarios using legal principles and case law.
  6. Reflect on how severance ties into broader property law issues.

Thorough comprehension of these concepts and their use equips candidates to handle complex property law questions in exams and real-world practice.