Key points
- Persons can only be joint tenants if there are the unities of 1. Possession 2. Interest 3. Title
- Uniter of interest cannot be severed through negotiations in the absence of an agreement
Facts
- C and her husband (RT) were beneficial and legal joint tenants in their matrimonial home
- They were contemplating divorce and both signed a memorandum which stated: “R.T. to use his entire discretion… to… sell the [matrimonial home]… and employ the proceeds realised to his new home… in order to provide a home… for… himself to live in….”
- RT entered into an agreement for sale but died before the sale was completed
- C sought a declaration that on death of her husband she was the sole owner of the home and proceeds of sale
Held (High Court)
- Declaration granted, C was the sole owner of the property and proceeds
- The joint tenancy in equity had not been severed
Walton J
Unities and severance
- Persons can only be joint tenants if there are the unities of 1. Possession; 2. Interest; and 3. Title
- Upon severance a person will take 1/n of the property beneficially, n = number of joint tenants
- To effect a severance it must be essential to destroy one of the unities before LPA 1925, in the following ways:
- Unity of possession: partition
- Unity of interest: agreement or conduct amounting to agreement, acquisition of another estate capable of merging
- Unity of title: actual alienation
- Mere unilateral declaration of intention to sever cannot effect a severance
Current case
- The memorandum by C and RT did not imply an agreement to sever as it dealt solely with the use of the proceeds of sale
- The correspondence of the parties negotiating as to their share of the proceeds do not imply either an agreement or declaration of intention to sever
- When parties are negotiating, they do not reach any final agreement to sever