Co-ownership - Severance of joint tenancies

Learning Outcomes

After studying this article, you will be able to identify and explain the legal mechanisms for severing a joint tenancy in equity, distinguish between the different methods of severance, and understand the legal consequences for co-owners. You will also be able to apply these principles to SQE1-style scenarios, including recognising the impact on the right of survivorship and the practical implications for clients.

SQE1 Syllabus

For SQE1, you are required to understand the rules and practical effects of severing a joint tenancy in equity. Focus your revision on:

• the distinction between joint tenancy and tenancy in common
• the statutory and common law methods of severance of joint tenancies
• the legal and practical consequences of severance, including the end of the right of survivorship
• how to identify and apply the correct method of severance in a given scenario

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.

1. What statutory provision allows a joint tenant to sever a joint tenancy by written notice?
2. Name two common law methods (other than written notice) by which a joint tenancy in equity can be severed.
3. What is the effect of severance on the right of survivorship?
4. True or false? Severance of a joint tenancy in law is possible under the Law of Property Act 1925.

Introduction

Co-ownership of land can exist as either a joint tenancy or a tenancy in common. Severance is the legal process that converts a joint tenancy in equity into a tenancy in common, fundamentally altering the rights of the co-owners. For SQE1, you must be able to identify the methods of severance, apply them to practical scenarios, and understand the consequences for the parties involved.

Types of Co-ownership

Co-owners may hold the legal estate only as joint tenants. However, the beneficial (equitable) interest can be held as either a joint tenancy or a tenancy in common.

Key Term: joint tenancy A form of co-ownership where each owner is 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 owner holds a distinct share in the property, which can be equal or unequal, and there is no right of survivorship.

Severance: Meaning and Effect

Severance is the process by which a joint tenancy in equity is converted into a tenancy in common. This ends the right of survivorship, so that on the death of a co-owner, their share passes under their will or intestacy, not automatically to the other co-owners.

Key Term: severance The legal process that converts a joint tenancy in equity into a tenancy in common, ending the right of survivorship.

Methods of Severance

Severance can only occur in relation to the equitable (beneficial) interest. The legal estate must always remain a joint tenancy.

There are several recognised methods of severance in equity:

Statutory Severance: Written Notice

Section 36(2) of the Law of Property Act 1925 allows a joint tenant to serve written notice on the other joint tenants expressing an immediate intention to sever.

Key Term: written notice (severance) A unilateral written communication by a joint tenant to the others, expressing a clear and immediate intention to sever the joint tenancy in equity.

Worked Example 1.1

Scenario: Priya and Samir own a house as joint tenants in equity. Priya sends Samir a signed letter stating she wishes to sever the joint tenancy with immediate effect.

Answer: Priya's letter is a valid written notice under s36(2) LPA 1925. The joint tenancy in equity is severed, and Priya and Samir now hold as tenants in common in equal shares.

Common Law Severance: Williams v Hensman Methods

Apart from written notice, severance can occur by the following common law methods (Williams v Hensman (1861)):

1. Act operating on a joint tenant’s own share

A joint tenant may sever by dealing with their own share, such as selling, mortgaging, or otherwise disposing of it.

Key Term: act operating on own share A unilateral act by a joint tenant (e.g., sale, mortgage, or contract to sell) that severs the joint tenancy in equity as to their share.

2. Mutual agreement

All joint tenants may expressly or impliedly agree to sever the joint tenancy.

Key Term: mutual agreement (severance) An express or implied agreement between all joint tenants to sever the joint tenancy in equity.

3. Course of dealing

A course of conduct between the joint tenants that demonstrates they all treat their interests as separate may amount to severance.

Key Term: course of dealing (severance) A pattern of conduct between joint tenants showing a mutual understanding that their interests are held separately, sufficient to sever the joint tenancy in equity.

Worked Example 1.2

Scenario: Three friends, Alex, Ben, and Chloe, own a flat as joint tenants in equity. Alex sells his beneficial interest to Dana. What is the effect?

Answer: Alex's sale of his beneficial interest is an act operating on his own share, severing the joint tenancy in equity as to his share. Dana becomes a tenant in common with Ben and Chloe, who remain joint tenants between themselves.

Severance by Operation of Law

Certain events automatically sever a joint tenancy in equity:

• Bankruptcy of a joint tenant (their share vests in a trustee in bankruptcy)
• Unlawful killing (the forfeiture rule prevents a killer from benefiting from survivorship)

Exam Warning

Severance only affects the equitable (beneficial) interest. The legal estate remains a joint tenancy and cannot be severed. Always check whether the question concerns the legal or equitable title.

Consequences of Severance

After severance, the co-owners hold as tenants in common in equity. Each has a distinct share, usually equal unless otherwise agreed or determined by contributions. The right of survivorship no longer applies—each share passes under the deceased’s will or intestacy.

Worked Example 1.3

Scenario: Two sisters, Fatima and Grace, own a house as joint tenants in equity. Fatima serves a written notice of severance on Grace, but dies before Grace reads the letter.

Answer: Severance by written notice is effective upon delivery, not receipt. Fatima's share passes under her will or intestacy, not by survivorship to Grace.

Practical Points and Registration

Severance does not require registration to be effective, but it is best practice to record the change, especially for registered land, to avoid disputes and ensure clarity for third parties.

Revision Tip

Always identify whether a severance has occurred before the death of a co-owner, as this determines whether the right of survivorship applies.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Severance is the process that converts a joint tenancy in equity into a tenancy in common, ending the right of survivorship.
• The legal estate must always remain a joint tenancy; only the equitable interest can be severed.
• Statutory severance is by written notice under s36(2) LPA 1925, requiring a clear and immediate intention.
• Common law methods of severance include act operating on own share, mutual agreement, and course of dealing (Williams v Hensman).
• Severance can also occur automatically by operation of law (e.g., bankruptcy, unlawful killing).
• After severance, co-owners hold as tenants in common in equity, with distinct shares passing under will or intestacy.
• Severance does not require registration to be effective, but recording the change is best practice.

Key Terms and Concepts

• joint tenancy
• tenancy in common
• severance
• written notice (severance)
• act operating on own share
• mutual agreement (severance)
• course of dealing (severance)