Learning Outcomes
After reading this article, you will be able to explain the Rule of Survivorship in co-ownership, distinguish between joint tenancy and tenancy in common, and identify how and when the right of survivorship applies. You will also understand the statutory and practical mechanisms for severing a joint tenancy and the consequences for succession and property rights, enabling you to answer SQE1-style MCQs and advise clients on co-ownership scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the operation and consequences of the Rule of Survivorship in co-ownership. Focus your revision on:
- the distinction between joint tenancy and tenancy in common in law and equity
- the operation and legal effect of the Rule of Survivorship (jus accrescendi)
- statutory and practical methods of severing a joint tenancy
- the consequences of severance for succession and property rights
- the relevant statutory framework, including the Law of Property Act 1925 and Trusts of Land and Appointment of Trustees Act 1996 (TOLATA)
- how to apply these principles to SQE1-style problem questions
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the Rule of Survivorship and to which form of co-ownership does it apply?
- How can a joint tenancy in equity be severed, and what is the effect of severance?
- What happens to a joint tenant’s share in a property if they die after severance has occurred?
- Which statutory provision governs the severance of a joint tenancy in equity by written notice?
Introduction
Co-ownership arises when two or more people hold rights in the same property at the same time. The Rule of Survivorship is a defining feature of joint tenancy, determining what happens to a co-owner’s interest on death. Understanding this rule is essential for advising clients on succession, property rights, and dispute resolution in co-ownership situations.
Types of Co-ownership
There are two principal forms of co-ownership: joint tenancy and tenancy in common. Each has distinct legal consequences, especially regarding succession and the Rule of Survivorship.
Key Term: joint tenancy
A form of co-ownership where all co-owners are equally entitled to the whole property, with no distinct shares, and the right of survivorship applies.Key Term: tenancy in common
A form of co-ownership where each co-owner holds a distinct share in the property, which may be equal or unequal, and there is no right of survivorship.
The Four Requirements
A joint tenancy can only exist if four requirements are present:
- Possession requirement: Each co-owner is entitled to possess the whole property.
- Interest requirement: Each co-owner has the same type and duration of interest.
- Title requirement: All co-owners acquire their interest from the same document or act.
- Time requirement: All co-owners’ interests begin at the same time.
If any requirement is missing, the co-ownership will be a tenancy in common.
The Rule of Survivorship (Jus Accrescendi)
The Rule of Survivorship means that when a joint tenant dies, their interest passes automatically to the surviving joint tenant(s). The deceased’s share does not form part of their estate and cannot be left by will or pass under intestacy rules.
Key Term: Rule of Survivorship
The principle that, on the death of a joint tenant, their interest passes automatically to the surviving joint tenant(s).
This rule only applies to joint tenancies, not to tenancies in common. In a tenancy in common, each co-owner’s share passes according to their will or the intestacy rules.
Worked Example 1.1
Three siblings, A, B, and C, own a house as joint tenants in equity and law. A dies. What happens to A’s interest?
Answer: A’s interest passes automatically to B and C as surviving joint tenants. A’s will or intestacy is irrelevant for this property.
Severance of Joint Tenancy
Severance is the process by which a joint tenancy in equity is converted into a tenancy in common. Severance destroys the right of survivorship for the severed share. The legal estate must always remain a joint tenancy (s.1(6) Law of Property Act 1925), but the beneficial interest can be severed.
Key Term: severance
The process by which a joint tenancy in equity is converted into a tenancy in common, ending the right of survivorship for that share.
Methods of Severance
Severance can occur in several ways:
- Written notice: Any joint tenant may serve written notice of intention to sever on the other joint tenants (s.36(2) Law of Property Act 1925).
- Unilateral act: A joint tenant deals with their own share (e.g., sells or mortgages it).
- Mutual agreement: All joint tenants agree to sever.
- Mutual conduct/course of dealing: The parties’ conduct shows they treat their interests as separate.
- Bankruptcy: Bankruptcy of a joint tenant severs the joint tenancy.
- Unlawful killing: If a joint tenant unlawfully kills another, the right of survivorship is denied for public policy reasons.
Worked Example 1.2
Four friends own a flat as joint tenants. One serves a written notice of severance on the others. What is the effect?
Answer: The serving joint tenant’s interest becomes a tenancy in common. The remaining three continue as joint tenants between themselves for the rest.
Exam Warning
In exam questions, always identify whether the legal estate or the beneficial interest is being severed. Only the beneficial interest can be severed; the legal estate must remain a joint tenancy.
Consequences of Severance
After severance, the right of survivorship no longer applies to the severed share. That share will pass under the severed co-owner’s will or intestacy. The remaining joint tenants continue to hold their shares as joint tenants unless and until further severance occurs.
Worked Example 1.3
A, B, and C own a property as joint tenants in law and equity. A severs their share. Later, A dies. What happens to A’s share?
Answer: A’s share passes under A’s will or intestacy as a tenant in common. B and C remain joint tenants as to the remaining shares.
Statutory Framework
The Law of Property Act 1925 and the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) provide the statutory rules for co-ownership.
Key Term: TOLATA
The Trusts of Land and Appointment of Trustees Act 1996, which governs the powers and duties of trustees and beneficiaries in co-ownership.Key Term: s.36(2) Law of Property Act 1925
The statutory provision allowing severance of a joint tenancy in equity by written notice.
Succession and the Rule of Survivorship
The Rule of Survivorship can have significant consequences for succession planning. If co-owners wish to leave their share to someone other than the surviving co-owners, they must sever the joint tenancy before death. Otherwise, the share will pass automatically to the survivors.
Revision Tip
If a client wants their share in a co-owned property to pass to someone specific, advise them to sever the joint tenancy and make a will.
Disputes and Severance
Disputes may arise if one co-owner wishes to sever or sell, and others do not. Under TOLATA 1996, any co-owner or person with an interest may apply to the court for an order relating to the property, including for sale or for a declaration of shares.
Worked Example 1.4
Two friends own a house as joint tenants. One wishes to sell, but the other does not. What can be done?
Answer: Either co-owner may apply to the court under s.14 TOLATA for an order for sale or other appropriate order.
Key Point Checklist
This article has covered the following key knowledge points:
- The Rule of Survivorship applies only to joint tenancies, not tenancies in common.
- On the death of a joint tenant, their interest passes automatically to the surviving joint tenants.
- Severance converts a joint tenancy in equity into a tenancy in common, ending the right of survivorship for that share.
- Severance can occur by written notice, unilateral act, mutual agreement, mutual conduct, bankruptcy, or unlawful killing.
- After severance, the severed share passes under the will or intestacy of the deceased co-owner.
- The legal estate must always be held as a joint tenancy; only the beneficial interest can be severed.
- TOLATA 1996 provides a mechanism for resolving disputes between co-owners, including applications for sale or declarations of shares.
Key Terms and Concepts
- joint tenancy
- tenancy in common
- Rule of Survivorship
- severance
- TOLATA
- s.36(2) Law of Property Act 1925
