LECTURE 6-(CO-OWNERSHIP)

Severance
 Severance is the name given to the process of converting a joint tenancy into a tenancy in
common.
 ‘Joint Tenancies and Tenancies in Common’, a joint tenancy of a legal estate in land is a
means of co-owning an estate in land. Holding a legal interest means to be responsible for
the administrative responsibilities and duties inherent in the land. A trust of land is
essential for the purpose of legal co-ownership (Williams & Glyn’s Bank Ltd v
Boland [1981] A.C. 487; Trusts of Land and Appointment of Trustees Act 1996 s.1) .
Likewise, equitable ownership of the land (meaning the right to enjoy and benefit from
the land) requires a trust in land (Law of Property Act 1925, ss.34 and 36).
 Of particular importance to joint tenancies are the doctrines of survivorship and the four
unities. Survivorship is the process by which one joint tenant takes the interest of another
joint tenant wholly upon the death of that other joint tenant. The opposing process is
where a tenant (a tenant in common) is able to pass on their interest to another by means
of a will. The four unities, meanwhile, are the so-called unities of possession, interest,
title, and time. Joint tenancies feature all of these unities, whilst tenancies in common are
only required to have unity of possession. Note that this does not preclude tenancies in
common from having the other interests; simply that a joint tenancy arises where all four
unities are present.
 Severance tends to be used for one of two purposes: excluding the future operation of
survivorship, or ending the perpetuating existence of the so-called unities of interest and
title. Ending the operation of survivorship appears to be of greater use between the joint
tenants, whereas ending the existence of those particular unities applies to dealings
between a joint tenant and a stranger.
 The act of severance produces among the former joint tenants a share in the property that
is equal to the shares of all other tenants in common: it is said that a newly-established
tenancy in common will grant that tenant in common 1/nth of the property
beneficially, n being the current number of the joint tenants (Nielson-Jones v
Fedden [1975] Ch 222, ChD  per  Walton J).
 Unless there are only two joint tenants, the severance will affect only the severing
tenant(s). For example, if X, Y, and Z are joint tenants, and Z severs, then Z will be a
tenant in common with a one-third share (given there are three tenants) but X and Y will
remain as joint tenants over the remaining two-thirds share (Wright v Gibbons (1949) 78
CLR 313 (HC of Australia) per Dixon J). If Y died, X becomes the joint tenant over that
two-thirds share by survivorship.
Limits on severance
 There are some limits on the operation of severance. Firstly, it cannot be effected by a
will. It must be effected inter vivos, meaning during the lifetime of the person intending
to sever the interest.
 Second, it cannot be brought about for legal estates; it can only be effected for equitable
shares in an estate (Law of Property Act 1925, s.36(2)). Meaning that co-ownership
will automatically and irreversibly take the form of joint tenancy. A tenant who acts to
sever their interest will only be acting on their equitable interest, and cannot dispose of
their legal interest unless they “release” their legal estate to the other joint tenant(s), or if
they are removed from the trust (TOLATA 1996 s.19), or upon their death. Alternatively,
it can be ended upon disposal of the estate (Law of Property Act 1925, ss. 36(2)-(3)).
 There is an exception to the rule that severance cannot be effected by will, namely
an execution of mutual wills by joint tenants intending to bring about a severance.
Such a position arises where the course of dealing between the parties gives rise to
the inference that both parties mutually considered their interests as tenancies in
common and were prepared to put that inference forward in writing ( Williams v
Hensman 70 E.R. 862  per  Page Wood V-C). Such a mutual intention must be
unambiguous. That unambiguity can be perceived as long-held assumptions between the
parties that they were holding as tenancies in common (Gore and Snell v
Carpenter (1990) 60 P & CR 456, ChD) or - directly addressing the wills point - where
the two parties each direct in their respective wills that they each dispose of their ‘share’
in the land (Re Wilford’s Estate (1879) 11 Ch D 267).
  Evidence of mutual dealing is very particular : for example, separating a living-space
into separate and self-contained areas does not indicate an intention to sever (Greenfield
v Greenfield (1979) 38 P & CR 570, ChD), nor will negotiations to sever the interests be
sufficient if those negotiations are left incomplete (Harris v Goddard [1983] 1 WLR
1203, CA).
Williams v Hensman  70 E.R. 862
Facts
A fund of money had been bequeathed by a mother, on trust for eight children to be
invested in order to create an income that would then be payable to her children on the
mother’s death.  The children consented to the fund being invested in this way, despite
the fact that they were legally minors.  At one point however, one of the children had
sums advanced to them alone.  The other children covenanted not to require the trustee to
make up the shortfall to them, and indemnified the trustee against claims, for damage to
their interests or other expenses incurred as a result of the advance.
Issues
What form of co-ownership in equity did the children have over the fund?   Whether or
not the beneficiaries were joint tenants of the fund.   Whether or not a joint tenancy
could be severed by the actions of the tenants.   Whether or not this had been severed
by their actions.
Decision / Outcome
The will created a joint tenancy between the beneficiaries.   This had been severed by
the actions of the beneficiaries.  There were three ways by which a joint tenancy may be
severed.  Firstly, an act of one of the persons, operating on their own share.  Secondly,
by mutual agreement, and thirdly, where there is a course of dealing that is sufficient to
show that the interests of all the parties were mutually being treated as a tenancy in
common.  In this case, all the parties had agreed to treat their interest as a tenancy in
common and so the joint tenancy had been severed in this way.

HOW TO SEVER
When intending to sever a joint tenancy, the burden of proof in establishing severance has
occurred lies with the party asserting that severance has indeed occurred (Re Denny [1947]
L.J.R. 1029). Severance can be effected by one of several methods:
a) Severance by written notice (Law of Property Act 1925, s.36(2))=Severance through
Statute
Under this method, a tenant gives a ‘notice in writing’ to the other tenants of their own ‘desire’
to sever the tenancy (Law of Property Act 1925, s.36(2)). There are several advantages and
limitations to using severance by written notice, which may be summarised as follows:
 No consent is required from the other joint tenants (Harris v Goddard  [1983]). Further, it
is not necessary for the notice to be signed and can even be undertaken via an application
to the court for a declaration of the rights for each tenant (Re Draper’s
Conveyance [1969] 1 Ch 486, ChD).
 However, for the written notice to be effective, it must be served on all existing tenants.
It must express an intention to sever with immediate effect, and not at some time in the
future (Harris v Goddard  [1983]).
 Additionally, it might be argued that this method of notice does not apply where the
names on the legal title are not identical to the beneficiaries behind the trust, meaning for
example where those with legal titles are simply holding the property as joint tenants on
trust  for others who do not hold the legal title (as per the precise wording of the Law of
Property Act 1925, s.36(2)).
 Note that if the joint tenants enter into an irrevocable agreement that each joint tenant
makes a will in favour of the other, then that would also effect a severance of the joint
tenancy (Re Heys (deceased) [1914] P. 192).
Kinch v Bullard [1998] 4 All ER 650
The case concerned a husband and wife, both of whom were beneficial joint tenants of
the matrimonial home. The wife was terminally ill. She commenced divorce proceedings
 and posted a notice of severance to the husband at their shared address. Before it arrived
however the husband suffered a heart attack and was hospitalised. The wife, being
present at the shared address, decided to destroy the notice, in an effort to rely on the
survivorship principle and obtain the husband’s share in the expectation that he would not
survive the heart attack. The husband died a week later and the wife now sought to take
his interest wholly on the basis that there was no valid severance. Neuberger J disagreed:
he found that the wife had initiated the process of severance by posting the notice of
severance to the shared address, and that by doing so, it was no longer possible for the
wife to avoid the effects of severance. Therefore, there had been a severance, and the
husband’s estate took a one-half share of the property.
Key Points:
 The wife sent a notice of severance to the husband at the husband’s residential
address.
 The husband did not read it: he was hospitalised before it arrived.
 The wife sought to prevent the effect of severance by destroying the notice once it
had arrived at the address.
 However, destroying it upon receipt did not alter the effect of severance, nor did
the fact that the husband never read it alter the severance either.
 In short, once the process of severance is begun by posting notice of severance,
the process is irreversible.
b) Severance by an act of a joint tenant ‘operating upon his own share’
There are three methods of severance dating back from the Law of Property Act 1925, s.36(2),
that reflect the categories laid down by Page Wood V-C in Williams v Hensman. The first
category of the three is any ‘act’ by a joint tenant ‘operating upon his own share.’ This would
typically take the form of a joint tenant totally or partially alienating their own share. This
method of severance is a unilateral act, which makes it relatively easy to undertake (Harris v
Goddard [1983]), and when the joint tenant acting to sever their interest does so, they can
effectively conceal that alienation from the other joint tenant(s) (Mortgage Corporation Ltd v
Shaire [2001] Ch 743, ChD). Given that it is unilateral and can be done without the knowledge
of the other joint tenant(s), this method does have a limitation in its usage: specifically, the
person so acting must have intended the act to be final and irrevocable, particularly as it
prevents any claim for survivorship for themselves. There are different types of ‘acts’ which
could apply:
Transfer inter vivos - given that joint tenancies do not have shares, it is to be inferred that if a
joint tenant wishes to act on their ‘share’, they must be presuming that they no longer wish to be
regarded as a joint tenant. They are presupposing that the tenancy has effectively been severed.
In other words, the presumption that there has been a severance necessarily gives rise to the
severance. It must be performed by written disposition or via a constructive trust (Law of
Property Act 1925, ss. 53(1)(c), 53(2)).
Alienation by mortgage - If one joint tenant acts to charge or mortgage the jointly held
entitlement, either at law or in equity, that charge attaches solely to the interest of that joint
tenant as if there had been an outright transfer of that tenant’s “share” (First National Securities
Ltd v Hegerty [1985] QB 850, CA). The severance takes effect in equity, whilst their legal
interest remains unaffected by the severance.
Involuntary alienation - There are various types of acts which have the effect of severing, even
where the alienation is involuntary (i.e. unintended). For example, if a bankruptcy order is made
against a joint tenant, by an operation of law that person’s interest is severed and becomes a
share (Re Pavlou (A Bankrupt) [1993] 1 WLR 1046, ChD), with their share being now lying
with their trustee in bankruptcy upon the appointment of that trustee (Insolvency Act 1986,
s.306(1)), and Bedson v Bedson [1965] 2 Q.B. 666). Imposing a charging order in respect of a
money judgment against one of the joint tenants will also act to sever the interests (Charging
Orders Act 1979 ss.2(1)-(2) and 3(4), Midland Bank Plc v Pike  [1988] 2 All E.R. 434).
Acts which are ‘insufficient’ for the purposes of severance
Usually, a testamentary disposition is not in itself sufficient whilst the will is still ambulatory,
meaning where the testator is still alive. In this instance, a mere declaration is not enough to
displace the rule of survivorship and ius accrescendi over the testamentary disposition.
Furthermore, where there is a declaration of an intention to sever, that intention is ineffective if
there is no written notice (Corin v Patton (1990) 169 CLR 540 (HC of Australia)  per  Mason
CJ and McHugh J).
c) Severance by mutual agreement
In Williams v Hensman, Page Wood V-C noted that severance might not just be effected
unilaterally, but could also come about by way of mutual agreement. This would require the
agreement of all the existing joint tenants that the interests should thereafter be severed. The
parties are effectively agreeing to ‘relinquish the beneficial interest of a joint tenant… including
the right of accretion by survivorship, in return for the share of a tenant in common’ (Corin v
Patton  (1990) per Deane J). Unlike with unilateral severance, there is no requirement for an
enforceable contract, and there may not even need to be anything put in writing (Law of Property
(Miscellaneous Provisions) Act 1989, s.2(1)). If in the course of discussions the parties only
reach an ‘agreement in principle’ to the idea, then without further evidence of the parties actively
consenting to the severance, such agreement in principle would be taken to mean the parties have
reserved their right to the joint tenancy, and therefore there is no severance (Gore and Snell v
Carpenter (1990)).
Exclusion of survivorship
For severance by mutual agreement to be valid, the parties must have contemplated that they
would thereafter be dealing with the property as tenants in common, no longer as joint tenants
(Burgess v Rawnsley [1975] Ch 429, CA). The question is whether in their dealing they have
agreed to end the rights of survivorship. So when applying this to a problem question, for
example, key evidence would be whether the parties have all agreed to transfer their interests to a
third party upon death rather than divest their interest to the other joint tenants. Alternatively, an
agreement that the proceeds of sale of the given property are to be divided between the tenants in
specified proportions will give rise to an act of severance by mutual agreement (Crooke v De
Vandes(1805) 11 Ves 330). However, in such a situation, the shares between the parties will
actually, by operation of law, be in equal shares rather than in whatever portions the parties had
agreed (Hunter v Babbage [1994] 2 FLR 806, ChD).
Burgess v Rawnsley  [1975]
A husband and wife (the wife being Rawnsley) purchased a dwelling-house as legal and
beneficial joint tenants, and each provided half of the purchase price. They had therefore
each provided an equal investment towards the property. Upon the breaking-down of the
relationship, Rawnsley agreed to sell her share in the house to her husband for a specified
price. She later revoked the agreement and sought to re-purchase her share, however the
husband died before negotiations could be completed. The Court of Appeal held that the
joint tenancies had been severed prior to his death and therefore his estate was entitled to
half the value of the property and to any proceeds of sale of the property. There were
some issues with the findings of fact about Rawnsley agreeing to sell her interest, and
both Browne LJ and Sir John Pennycuick had only upheld the trial judge’s finding of fact
on that point with reluctance.
Key points:
 The parties purchased the property as joint tenants.
 The parties contributed equally towards the purchase price.
 Both parties agree to a severing of one of the party’s interests in the property.
 Later negotiations, which remained incomplete, could not displace the act of
severance which had occurred prior.
 With this case, bear in mind that there is some concern over the evidence for the
sale of the interest.
d) Severance by mutual conduct
Parties may sever not only by mutual agreement, but also by mutual conduct, which consists of
‘any course of dealing sufficient to intimate that the interests of all were mutually treated as
constituting a tenancy in common’ (Williams v Hensman  70 E.R.  862 per  Page Wood V-C).
The key phrases in that passage are:
i) Sufficient to intimate
ii) Interests of all
iii) Mutually treated
iv) Constituting a tenancy in common.
First, ‘Sufficient to intimate’ suggests that there is some threshold to satisfy. Evidence of a
mutual understanding is not as straightforward as evidence of mutual agreement, because in an
agreement one can point to a specific event or document. Here, the evidence is more
circumstantial. The word ‘intimate’ means that the circumstances effectively imply a tenancy
in common, meaning nothing has to be said on the subject of severance between the parties.
Second, the ‘interests of all’ demonstrates that all of the tenants must have their interests
affected by the severance. Third, ‘mutually treated’ means all the tenants treat both their own
interests and all the other interests as severed; no joint tenancy remains. Finally, all of these
together point to a ‘tenancy in common.’
The conduct must be such that the pattern of dealing between all of the parties is, though not
quite unambiguous and explicit enough to constitute a mutual agreement to sever, nevertheless
evince a clear common intention to sever the joint tenancy. As with above, it must be clear
that the parties to preclude the further operation of survivorship (the key component of joint
tenancies). It is also worth emphasising that this means of severance is treated as distinct from
severance by mutual agreement (Burgess v Rawnsley  [1975]). Ultimately, there must be a
consensus between all the joint tenants, as disclosed by a pattern of dealings with the co-
owned property, which would in effect exclude the future operation of the right of
survivorship (Quigley v Masterson [2011] EWHC 2529 (Ch)).
Such examples of mutual conduct include long-term assumptions held by the parties that the
tenancies were in common and not joint (Gore and Snell v Carpenter), or where the parties
have subsequently executed wills in which they all refer to ‘shares’ in the estate ( Re Wilford’s
Estate). The courts have placed great emphasis on the need to show that a mutual
understanding exists between all of the joint tenants affected (Davis v Smith  [2011] EWCA
Civ 1603). The parties need not come to an agreement; there simply has to be evidence that
they intend to deal the property in common, for example by the periodic distribution of
property between themselves (Re Denny  [1947]).
With all that said, mutual conduct is not evidenced by the following:
 Physical conversion of jointly-owned premises into separate and self-contained units
(Greenfield v Greenfield (1979)).
 Negotiations between the parties to divide the interest in the property into shares that are
inconclusive (Harris v Goddard  [1983]).
 Where one party ‘offers to buy out the other for X and the other makes a counter-offer for
Y’ (Burgess v Rawnsley  [1975] per Sir John Pennycuick).
 Finally, it is not enough that each joint tenant had independently treated the joint tenancy
as severed; there has to be a mutual understanding.

e) Severance in consequence of unlawful killing

This rule flows from a public policy concern that a joint tenant, criminally implicated in the
death of another joint tenant, should not be able to benefit via survivorship from receiving the
interest of the deceased (Re K, deceased [1985] Ch 85, Ch D).
In cases other than those involving murder, the court has a statutory discretion, though it is
limited (Forfeiture Act 1982, s.2(2)) to modify the operation of the forfeiture rule. This is done
if, regarding the conduct of the offender and of the deceased and other material circumstances,
‘the justice of the case requires the effect of the rule to be so modified.’
f) Severance by merger of interests
This is a rare scenario, but not impossible. It applies where the four unities inherent in joint
tenancies are abolished by a so-called “merger” of interests. This could apply where three joint
tenants are for life, but the remainder goes to one in fee simple, and another joint tenant later
acquires the remainder. It effects a change of status on the part of the person taking the
remainder, rendering them a tenant in common and leaving the remaining tenants as joint
tenants.
Another example is if one of the joint tenants goes on to acquire another estate in land in addition
to their joint tenancy, then this might act to dissolve the unity of interest, because that joint
tenant has interests greater than the other joint tenants. The reason this is the case is due to the
doctrine of merger: a greater estate and a lesser estate are both held by the same person, without
any intermediate estate, and therefore the lesser estate is incorporated into the greater estate. As
to whether this amounts to severance, it is a question of intention of that person acquiring the
estate. There is little authority on when a joint tenancy is regarded as being severed by merger
(Nielson-Jones v Fedden [1975]).
g) Old forms of ownership
Prior to 1 January 1926 there was a form of co-ownership in England known as tenancy by
entireties. This type of co-ownership was a type of joint tenancy between husband and wife that
could not be severed. Its inseverability was due to its character, reflecting the eternal unity of
matrimonial partners. No such tenancies could be lawfully created after 1882 (Married Women’s
Property Act 1882, ss.1 and 5), and in 1926 all such tenancies were rendered by operation of law
as joint tenancies (Law of Property Act 1925, Schedule 1, Part VI).

FAMILY BREAKDOWN
As seen in the chapter ‘Joint Tenancies and Tenancies in Common’, the courts have attempted to
deal with the irretrievable break-up of households and the interests of the respective parties by
means of severance. That being said, this area has had problems.
Firstly, a legal joint tenancy of the periodic lease can be problematic because it requires
unanimous action by joint tenants. One of the joint tenants can effectively frustrate the process
and bring the lease of the family-owned home to an end by simply refusing to enter into a further
term (Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478).
Following this case of Monk, further cases under the Human Rights Act 1998 sought to challenge
that problem, because it meant service of a notice to quit by a joint tenant of the periodic lease
(effectively acting as that refusal we mentioned just now) would bring the lease to an end
without any judicial review of the merits of the argument that this refusal disproportionately
infringed on loss of property and occupation rights (Articles 1 and 8 of the European Human
Rights Convention 1956, as argued in Qazi v Harrow LBC  [2003] UKHL 43). This led to the
Supreme Court modifying the position in Manchester City Council v Pinnock  [2010] UKSC 45.
In the case of Pinnock, the court held as follows:
a) Where a public authority seeks possession,
b) Of a person’s home,
c) The dispossessed occupier can seek a review of proportionality
d) Due to damage done under article 8.
e) This ground can only be argued by the occupier;
f) The matter can be dealt with summarily.
g) Normally, the public authority will not be refused possession,
h) But the court must review it if the matter is raised
i) And must resolve any factual issues in order to complete the review.