SEVERANCE OF CO-OWNERSHIP

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SEVERANCE OF CO-OWNERSHIPLand Law
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Background

• Land law investigates the civil law rules
  affecting the ownership and use of land.
• The possession or right to property and the way
  in which it is held is known as tenure.
• The law of co-ownership is a product of statute
  and the common law, the Law of Property Act and
  the Trusts of Land and Appointment of Trustees
  Act 1996, which are very important.
• In the UK property can be owned in a number of
  ways and today we will be focusing on Freehold
  and Leasehold Tenures and in the next lecture, we
  will look at the third type of tenure, which is
  Common-hold.

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Top view of Land Law
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Ownership

• Ownership refers to the possession of and the
  exercise of rights over property or land.
• The possession or right to property and the way
  in which it is held is known as tenure.

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Joint Ownership

• Property/land can be owned by more than one
  party. For example, property can be jointly owned
  by husband wife, between siblings and business
  partners. This is known as joint ownership.
• Furthermore, it is not important for each owner
  to have equal shares in the ownership and the
  share can be disproportionate amongst the owners.
• There are two main types of joint ownership
  Joint Tenancy and Tenancy in Common.

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Joint Tenancy

• The joint owners together own the whole property
  and do not have a particular share in it.
• If one of the owners dies, the other surviving
  owner automatically becomes the sole owner.
• This would be the case even if a will had been
  made leaving the deceased owners share to
  someone other than the co-owner.
• For example, a husband wife buy a house
  together as joint tenants, they both own the
  property in equal 50/50 shares. If one of them
  dies, the property will pass to the other
  automatically.

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Joint Tenancy

• Joint tenancies are not permanent arrangements,
  and have never been regarded.
• Joint-tenancy may be severed by mutual agreement.

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Fee simple absolute in possession

• Fee simple means that the owner of the
  property owns the land and may dispose (sell it
  or pass it under his will) of it as he wishes,
  without any restrictions.
• Absolute means that the property is not
  subject to any condition of length or period of
  time.
• in possession means that the owner has
  immediate right of possession of the land or has
  the right to receive any rent from someone who
  might reside in it.

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Unilateral Severance

• Unilateral severance is an important legal
  mechanism for co-owners, as well as for lawyers
  advising joint tenant clients and third parties
  such as lenders with security interests in such
  property.
• Land Titles Act 1980 (Tas) a registered joint
  tenant is able to effect unilateral severance by
  the execution and registration of a declaration.
• Unilateral severance of a joint tenancy empowers
  a joint tenant to exercise his or her freedom to
  deal with the property.
• Unilateral severance can take place by partial
  alienation.

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Severance of Joint Tenancies

• Severance of joint tenancies in general deals
  with interests in land, and as such we might
  expect the standard formalities to apply.

• Severance allows for the changing nature of
  intimate and familial relationships over time.

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Williams v Hensman (1861)

• Facts
• Complex joint tenancy/severance question
  regarding trust, not relevant to ratio.
• Issue
• The Law of Property Act 1925, s 36(2) to sever a
  joint tenancy.
• Decision
• Either an act on ones share, a mutual
  agreement or a course of dealings, according to
  Vice Chancellor Page-Wood.

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Impact

• The three modes of severance referred to
  in William v Hensman have come to be known as the
  three rules.
• It was recognised that all joint tenants may
  agree to severe. The consideration of the
  agreement is the consent of each party to
  relinquish the beneficial interest of a joint
  tenant. 
• The right of accretion by survivorship, in return
  for the share of a tenant in common' Corin v
  Patton (1990) per Deane J.

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References

• Jacqueline Martin, GCSE Law, 5th edition,
  chapter 28- Family. Law Inheritance
• Severing a joint tenancy http//www.lawontheweb.co
  .uk/jointtenants.htmaccessed on 22 Dec 2017
• Report on co-ownership of land by the law
  Commission http//www.bcli.org/pages/publications/
  lrcreports/reports(html)/Lrc100text.htmlC.20Tena
  ncy20in20Common accessed on 5 Jan 2008

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