Discuss about the Position of Law on Co Ownership of Property.
Courts remain to encounter difficulties in particular accounting for the rights and liabilities of co-owners. In most of the cases, when the co-ownership relation end and the need to transfer the property arises. There two types of tenancies. These are, the joint tenancy and tenancy-in-common. Rationally, joint tenancy occurs when two or more acquire properties together with undivided or undefined shares which is the case in St Peter’s Street Number one, two, and three. We distinguish joint tenancy with four realities. The first one is the unity of proprietary rights, which means the equal right of possession to the entire property. The law says that joint tenant to hold the property in per my et per tout. It simply means that each party owns a whole but nothing as an individual.
The second one is the harmony of interest. For this part, the co-owners get the equal treatment either for a fee or as a freehold. The third one is the title. This one states that the ownership should come from the same source. And lastly, is have the time, the unity of time dictates that all the parties vest their interest at the same time. In our concerned cases, all these entities exist in St Peter’s Street No. 1, 2, and 3.
When we come to tenants in common, each party has its defined share. Notably, they may own their respective proportions equally, only that they are specified in writing. In a case one party dies, his/her interest in the property does not end, meaning that the property can comfortably pass to the beneficiaries. This type of tenancy mostly occur where the parties in the ownership come from different backgrounds, and they would want to protect the interest of their individual beneficiaries.
Legal joint ownership states the people whose names appear on the title documents. In most cases, the legal owners are those people mentioned as the registered proprietors”. Beneficial joint ownership talks more about the people with the right to share all the interests of the property. By this, the person with the beneficial interests controls the person with the legal interests. ‘The law recognizes that sometimes that the “legal” owner is not the right owner of the property but merely holds the title to the property for the beneficial owner.
The severance of joint ownership can occur either with or without the knowledge of other joint owners especially if their conduct is contradictory to joint ownership. To help Holly, Larissa, and Nathan, this paper we shall examine the requirement for severance, and compare the condition with each case.
The procedures by which severance should happen are as follows; it can be ‘by one party ‘operating upon its share.’ It can occur when the co-owners decides to end the severance ‘by agreement’. It can also occur ‘by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common’. Again, one joint tenant can also send the other ‘notice in writing to the other joint tenants.’ Some acts of a third party can also amount to severance. Also, severance can happen due to the acquisition of another estate in the land or through a merger. And lastly, in the cases of homicide, the law will never allow anyone to benefit from a crime. Following all those grounds for severity, this paper will now in depth discuss the application of such principles.
For a short background on this case, Holly and Fred acquired St Peter Street No 1 as a married couple. While registering their plot, they registered the proprietorship as joint. Plus, they never had a child. Later on the road, this couple got problems and Fred (husband) decided to leave his share through a Will to his friend Jim.
As far as joint tenancy is concerned, one significance feature is that when one party dies, the ownership ends there. In this case, it means that the surviving owner(s) becomes the sole proprietor. More than that, the deceased share doesn’t count as a part of his/her estate. As a consequence of that, the property is also not available for division among the beneficiaries. The question in concern is, can a deceased leave transfer the ownership of joint property through a Will? The second question, can a Will have any other impact on property held in joint tenancy? Notably, any Will can only govern the properties that the deceased owned individually. With this, a will can’t regulate any property held in joint tenancy.[12] Furthermore, Law Commission abolishes all other existing methods of severance other than severance by notice. So since Holly and Fred had their shares registered as joint, Holly was then entitled to the right of survivorship after the death of Fred.
As we have seen above, tenancy in common allow the parties to pass the property to their beneficiaries after the die. With this, Fred could not pass his share to Jim because he had not severed their joint tenancy with Holly. Therefore, the Will giving the golfing buddy (Jim) a share of Fred’s estate is null and Void. In simple, Fred’s share had already passed on to Holly, as she was the only surviving tenant. In addition to this, we can also say that Fred held the property in trust for Holly, therefore he was not entitled to transfer it or handle it as it was solely owned by him.
As for the case of St Peter’s Street No.2, the dispute concerns a four-bedroomed house owned Rachel, Ellie, Sophie and Larisa. The four persons acquired the ownership together, but forgot to declare their ownership while registering. In this dispute, this paper shall decide whether the ownership falls under Joint proprietorship or Tenancy in Common.
For this purpose, the law can determine where their ownership falls by analyzing four tests. The first test would be the existence of the four entities of Joint ownership. The first one would be the unity of interest. For this one, it’s absolutely clear that the girls need a home but could not afford it. With that, they ‘clubbed’ together. This fact concludes that there was unity of interest. Second is the unity of time. As a matter of fact, all these girls wanted a home at the same time. They met, filled the form at the same time, and moved to the house at the same time.
Our third test would analyze the unity of title. These girls filled the forms together and even they all failed to fill the TRM together. More on that, they got the title from the same body of registration. This also concludes that there was a unity of title. Lastly, there is unity of possession. These girls physically own Street No 2, and there is no restriction on the use. Plus, there is no declaration of trust.
In consideration of the above tests, the conclusion is that St Peter’s Street No.2 falls under joint in tenancy. Another point that makes the ownership a Joint ownership is the decision by the House of Lords that said it’s impossible for two people receiving thee title from one person, for the same building to own it as tenants in common. With this, the case Antoniades v Villiers serves a good mirror example. So in the case of St Peter’s Street No.2, the law would require Larissa to consider the process of severing the tenancy.
In law, there are different methods of severing a joint tenancy but the main one is by way of a notice in writing. In this case, the best advice to Larissa would be severing their joint tenancy, and she should do it by a notice in writing. In general, the notice to severe any joint tenancy includes three elements. The first one is the current ownership. This element would require Larissa to include all the names of other proprietors of Street No. 2 as they appear in the title document. Secondly, Larissa would need to indicate how she wants to change the ownership. In this part, she would indicate that it’s from Joint tenancy to tenancy in common. And lastly, Larissa would need to indicate the different shares that each person owns. This would be easier because they own the property in equal shares among the four of them.
Another point to note is that there are two ways of partitioning shares. That is, the partition in kind where the property is divided and each person walks with his/her share. The other one is the partition in sale where the property is sold and money is divided among the proprietors. The former works better when dividing a home.
A short background of this case shows Aimee and Nathan purchasing street No. 3 together. They registered the ownership as ‘joint tenants,’ Nathan is now unhappy with the marriage and wants to severe the tenancy. He send the request to sever to Aimee but Aimee dies before she shows her intention on severing. In this case, this paper shall examine the validity of a notice in severing a joint tenancy sent by posting to the other Joint tenan t(s). As far as this case is concerned, the law counts a notice to severe sent as far as it was sent to the tenants’ last known address (or business address). Another point to note is that the notice will be deemed sent either the other tenant received it or not. So for a case of Nathan and Aimee, the law considers that Nathan had already severed the tenancy.
A mirror case that supports this fact is Kinch v Bullard. Both wife and husband owned a matrimonial home jointly. Sadly, the relationship got worse and the wife initiated divorce proceedings. The wife was ill and thought she would die before the husband, so she asked a solicitor to send a letter with a notice to severe the joint tenancy. Unfortunately, the husband died and the wife backed from the severance by retrieve the letter and tearing. Even though, the judge held that the tenancy had already been. With this concern, Nathan should accept that he can’t have Aimee’s share because he had severed their joint tenancy. Nathan should know that he severed the tenancy the moment he sent the letter and it was delivered. Aimee didn’t have to see it.
Conclusion
To sum it up, it’s imperative that any two or more persons planning to live together should agree on their terms concerning their ownership, and such agreement should be explicit. Also, if anyone wants to obtain their ownership in the shared property, it’s advisable to get it in an express trust declaring the share. Notably, a declaration of trust should be in written and a person with the capability to declare the trust append his/her signature.
Baird D James, “Estates: Out Of the Ordinary Problems” [2008] Joint Tenancy
Dixon M, Modern Land Law (1st edn, Routledge 2012)
Evans vs Evans (No.2), [1951] 2 D.L.R. 251 (B.C.C.A).
Firth Michael, ‘The Taxation of Jointly Owned Property’ (2013) VOL XII GITC Review.
Smith R, Property Law (8th edn, Pearson Longman 2012)
Govett Quilliam, “Joint Tenants vs Tenants in Common” [2012] Last Update
Conveyancing Act 1919, s2.
Burgess v Rawnsley [1975] Ch 429, 444, 446
Re Gorman [1990] 1 WLR 616
Megarry & Wade, para 9-048
Forfeiture Act 1982, s 2(4)(b)
Evans vs Evans (No.2), [1951] 2 D.L.R. 251 (B.C.C.A).
Law of Property Act 1925, s 36(2)
Antoniades v Villiers [1988] 3 WLR 139
Kinch v Bullard [19981 1 WLR 423
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