Co-Ownership Disputes Lecture

INTRODUCTION

This chapter is a focused discussion of the areas of dispute within co-ownership. This chapter will reprise some of the discussions that you have already looked over in the chapters titled ‘Joint Tenancies and Tenancies in Common’ and ‘Severance’.

This chapter will look at some of the main sources of dispute within co-ownership. The first is the idea of the right of survivorship. Joint tenants - and their successors - will each have a financial and personal interest in whether or not a deceased joint tenant has been survived by the other joint tenant(s) or whether the deceased joint tenant’s interest passes on to their named successors. This is resolved by one of two approaches: severance, or invalidity of the four unities. The second source of dispute is between tenants in common regarding their right of possession.

Given the overlap between this chapter and the foregoing chapters on Tenancies and Severance, it is recommended that you refer to those chapters to fill any gaps in your knowledge on the topics discussed below.

RIGHT OF SURVIVORSHIP

The right of survivorship, as indicated in the chapter on ‘Joint Tenancies and Tenancies in Common’, concerns the idea of being wholly entitled to the property held under a joint tenancy with another (now deceased) joint tenant. A right of survivorship is advantageous to the surviving joint tenant(s) because their “share” of the property is total and absolute. Indeed, in joint tenancies there is no concept of shares, because a party, or parties, will (each) hold the property totally and utterly.

The right of survivorship is at the heart of most (if not all) problem questions around disputes in co-ownership. Its importance is due to its allocation of rights over the land. Depending on whether land is subject to a joint tenancy, or is a tenancy in common due either to severance or a defect in the attempt to create a joint tenancy, a tenant’s interest in land will either pass to the other joint tenant(s) or to their named successors. Who obtains the interest depends on whether the right of survivorship is engaged or not upon the death of the given tenant. Therefore, the other joint tenant(s) and named successors each have a stake in finding out whether a joint tenancy exists or not.

Advantages of survivorship

There can be an imbalance because the person(s) with the right of survivorship will take the entire estate, whether co-owned or now solely owned, regardless of how much they contributed towards the purchase price of the property. They may have contributed no funds whatsoever to the purchase or maintenance of the property, and yet be still regarded as owning the property - most likely their most valuable asset - entirely.

The main question is whether a given person is a beneficial survivor of the deceased joint tenant. The question is unlikely to be whether a given person is the survivor of the legal estate, because that carries duties and responsibilities rather than benefits. The legal owner has responsibilities relating to the management of the land, whereas the beneficial joint tenant would be entitled to the use and enjoyment of the land as well as the ultimate value of the land. So if the land is sold, the proceeds be received by them as a beneficial joint tenant. A legal owner may be the first to receive those proceeds, but they would only be holding the proceeds on trust for the beneficial (co-)owner.

The process is also straightforward: there is a presumption that a surviving joint tenant will automatically receive the whole of the deceased joint tenant’s interest and thus take the property wholly. Indeed, the only evidence required to prove that the surviving partner is entitled to the interest is evidence of the death of the other joint tenant, usually provided simply by a death certificate. Survivorship can therefore streamline the means by which a surviving partner in a family household can take legal and beneficial control of the land once their partner has died.

The dispute: joint tenant survivor v. beneficiary of the will

It is an inherent and inescapable quality of joint tenancies that the right of survivorship overrides the wishes of any joint tenant expressed in a will where the two conflict.. That is to say, if a joint tenant wants to pass on their share in property simply by expressing that intention in a will, such an act is insufficient to prevent the property reverting totally and wholly to the other named joint tenant(s).

What this means is that if a person named as a beneficiary in a will wants to ensure that they actually get their share, they have to show the following:

1. The testator (the person who wrote the will) is entitled as a joint tenant to the property,
2. The testator named the hopeful beneficiary as the beneficiary to the land in the will,
3. The testator has successfully severed their share in the property before their death, or
4. The alleged joint tenancy was actually a tenancy in common at the relevant time.

Intention to be a legal owner

That being said, it is possible that the legal estate is desirable because a given person wants to be able to exercise the powers accorded to the person with the legal estate, and intends to do so without being a beneficiary and therefore reliant on the trustee fulfilling the beneficiary’s wishes. A joint tenancy of the legal estate cannot be severed; only a joint tenancy of the beneficial estate may be severed into tenancies in common (Law of Property Act 1925, s.36(2)), and therefore the idea of severance (and all the issues surrounding the above discussion on that topic) does not apply to the legal estate. It is in any event straightforward to render a person as a joint tenant of the legal estate only (i.e. not a joint tenant of the beneficial estate) by invoking the powers of appointment under the Trustee Act 1925, sections 36, 40 and 41(1) and s.19(2) of the Trusts of Land and Appointment of Trustees Act (TOLATA) 1996. A joint tenant can even choose to transfer their legal estate to another person, rather than simply add another co-owner to the existing number of co-owners (Law of Property Act 1925, s.72).

SEVERANCE AND SURVIVORSHIP

As we have seen in the chapter on Severance, there are a number of ways by which a party can sever their joint tenancy into a tenancy in common and thereby act on the interests of all other joint tenants (and to an extent the rest of the world).

For disputes, there are several relevant questions pertaining to the various methods, and so this subsection will do the following: it will enumerate briefly the different methods of severance, and with each method this subsection will set out the priorities of the opposing parties and what they would need to be successful in their claim/defence should the matter be litigated. Finally, it is emphasised here that all discussions here of severance are in the context of survivorship, meaning “what would need to happen for the right of survivorship to be brought to an end?”

1. Severance by written notice: This method is unilateral, meaning the joint tenant looking to sever acts alone and does not need the consent of the other joint tenant(s) to the process (Harris v Goddard [1983] 1 WLR 1203, CA). What is required is sufficient notice and immediacy of effect: all joint tenants must be provided with the notice of the first joint tenant’s decision to sever (Harris v Goddard [1983]), and the notice must state that the severance takes place with immediate effect (Harris v Goddard [1983]).

A testator looking to sever and therefore pass on their title would want to ensure that they have provided the appropriate degree of notice before their death. Likewise, a person hoping to benefit from the will and testament of the deceased joint tenant would want to provide evidence that such notice was posted to the remaining joint tenant(s) (though not necessarily read by those joint tenants: see Kinch v Bullard [1998] 4 All ER 650)).

Conversely, if a surviving joint tenant wants to frustrate such a means of severance, their only hope is that notice was not provided, either at all or to all the joint tenants, and/or that the notice was said to take effect in the future rather than immediately (Harris v Goddard [1983]).

Key Points:

• The wife sought to bring about a divorce, as part of which included the (eventual) severance of the joint tenancy.
• The prayer in the petition was not a valid instrument of severance, because it did not evince the required intention, given that it would not take place immediately.
• The fact that the husband did not have the opportunity to consider the petition was not grounds for rendering the purported severance invalid.

2. Severance by a joint tenant acting on their own share: Like the above, this is where the person looking to sever the joint tenancy acts without the consent of the other joint tenant(s). Indeed, they can even choose to not disclose the alienation to the other joint tenants (Mortgage Corporation Ltd v Shaire [2001] Ch 743, ChD). As with severance by means of serving a notice, a joint tenant must operate on their own share in a manner which is final and irrevocable. In other words, their intention to sever must be unambiguous and binding.

It would appear that if a joint tenant wishes to dispose of their property in favour of a named party in a will, this approach does provide a means of effect for that that disposal. A constructive trust, or a written disposition, will suffice (Law of Property Act 1925, s.53(1)(c) and s.53(2)).

Of course, this notion may indicate a conflict with the notion that a joint tenant relying on a will to pass on their interest is defeated by the concept of survivorship. Therefore, there is a question about what sort of language the disponor should adopt in their disposition in order to overcome the obstacle of survivorship and bring about the transfer of an interest. It is submitted that speaking of a “share” or “shares” in a property will bring about this effect.

For example, A and B are joint tenants of Blackacre. A wants to pass on their interest to C, their intended beneficiary. C is not a joint tenant. A expresses in their will an intention to pass on their interest in Blackacre to C. If A speaks of this interest as simply an “interest”, that would not be enough, and so A’s interest will go wholly to B. However, if A talks of their “share” in the property, then such wording will amount to severance, and as such the death of A will result in their share (defined by their will) being passed on to C.

Another route open to joint tenants is that they can mortgage or charge their “share” to a third party, thus severing their interest from that of the other joint tenant(s) (First National Securities Ltd v Hegerty [1985] QB 850, CA). Of course, by doing this they will levy that debt onto their intended beneficiary.

As with the method of severance by notice, there is little that a joint tenant can do if they are relying on the concept of survivorship to defeat the other joint tenant from disposing of the latter joint tenant’s interest via a will. The most that a joint tenant, relying on survivorship, can do is to argue that the language in the instrument of disposition i.e. a will does not evince the degree of intention required for severance.

This joint tenant, relying on survivorship, can also argue that the language in the will is insufficient if there is no written notice served by the testator on the other joint tenant. However, the case for this principle (Corin v Patton (1990) 169 CLR 540 (HC of Australia) is an Australian case and would therefore not be binding on an English court. The joint tenant hoping to survive the deceased joint tenant therefore faces a degree of legal uncertainty on this point.

3. Severance by mutual agreement: This method, unlike the ones mentioned above, requires that all joint tenants are not only aware of the initiating joint tenant’s intention to sever the tenancy, but also consent to it. As we have seen, unanimous consent of all the joint tenants is required in order for the severance to be valid and effective (Williams v Hensman 70 E.R. 862).

This kind of severance is heavily evidence-based, particularly where the agreement in issue (i.e. the agreement between the joint tenants to sever their interests) has no written record. If the agreement is not written down, then what is needed to be proven is that the parties expressly agreed. This means being able to point to words and acts on the part of those joint tenants in the moment of the alleged agreement. As a result, such evidence may be more arguable and therefore less certain to ensure that a court accepts the parties had indeed all agreed to a severance of the joint tenancy.

The irrevocable nature of this means of severance is underscored by the need for finality in the discussion itself: if the parties only reach an agreement in principle to sever the joint tenancy, and do not evince any subsequent intentions to sever - for example if no action is taken by any of them regarding their “shares” - then the court shall presume there was no severance by mutual agreement (Gore and Snell v Carpenter (1990) 60 P & CR 456, ChD).

This type of severance can therefore pose an evidential challenge for a joint tenant or beneficiary hoping to rely on severance. If there is no written evidence, either of the agreement or of any operations on shares undertaken subsequent to the agreement, the court may infer there was merely an agreement in principle, which as we have seen is not enough to create severance. The most likely means of proving severance of mutual agreement is if it comes prior to an act concerning a third party and the estate, such as distributing the proceeds of sale of the land to that third party (Crooke v de Vandes (1805) 11 Ves 330).

Conversely, the challenge for a joint tenant hoping to rely on survivorship is that they cannot avoid the consequences if they sign a written document attesting to the severance; they cannot resile from their commitment to the severance. Equally, even if written evidence of the initial agreement is lacking, any actions undertaken by the other joint tenant(s) may be enough to persuade a court that severance took place. The joint tenant hoping to rely on survivorship would therefore be in a stronger position if they were not present at the agreement to sever. Alternatively, they might argue that inaction on their part regarding severance - for example, they do not create a will of their own regarding their “share” - is evidence that they did not agree to the severance.

4. Severance by mutual conduct: This type of severance relates to ‘any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common’ (Williams v Hensman 70 E.R. 862 per Page Wood V-C). The threshold for proving severance by mutual conduct is not the same as that found in severance by mutual agreement. In the case of the latter, there must be evidence of express agreement. In the case of the former (i.e. mutual conduct) the threshold is that of implied intention. What the two have in common is that the parties severing their interests must have understood and accepted the preclusion of the benefits of survivorship between themselves (Burgess v Rawnsley [1975] Ch. 429, CA).

This type of severance relies on evidence of mutually-held assumptions between the parties that severance has taken place (Davis v Smith [2011] EWCA Civ 1603). You should remind yourself of the kinds of mutual conduct that will not stand in as sufficient evidence of mutual conduct of severance, such as the physical conversion of premises that are jointly-held into partitioned units that are each separate from one another and self-contained (Greenfield v Greenfield (1979) 38 P & CR 570, ChD).

You can conceive of this type of severance as equivalent to the difference between negligence and fraud in tort law. Proving fraud without explicit evidence of the intentions of the tortfeasor can be difficult, whilst proving negligence relating to the same alleged tortious acts/omissions is comparatively easier.

Key Points:

• The relevant parties agreed to split the proceeds of sale of the property.
• The bargain over the split of the proceeds of sale was also subject to another bargain relating to the endowment policy i.e. that each party would receive a “share” of the proceeds.
• Each party would have contemplated providing a notice of severance.
• Each party was continuing to act in a manner consistent with parties that were intending to sever e.g. by filing for divorce, agreeing to split the proceeds of sale of the property, being advised by solicitors who will have been familiar with the necessity of notice or agreement of severance.

5. Severance by other methods: As you will recall from the chapter on severance, there are several other ways in which severance may be effected. These are summarised in brief as they are less likely to be featured in a dispute over severance. First, there is severance by reason of an involuntary alienation, meaning where the parties’ interests have severed due to an operation of law. A common example is where one of the tenants is declared bankrupt (Re Pavlou (A Bankrupt) [1993] 1 WLR 1046). Second, there is severance following an unlawful killing by (one of) the joint tenants: public policy is keen to discourage the possibility of a person profiting by the killing of another person, and here that would mean one joint tenant (arranging for the) killing another joint tenant in order to obtain that latter tenant’s interest (Re K, decd [1985] Ch 85, ChD). Third, if one joint tenant looks to “merge” their interest in the co-owned land with an interest over a different estate, then that may result in severance because the unity of interest has been overtaken by the merger.

For a joint tenant looking to retain (and expand) their interests, the only viable means of the above three is to merge their interest with that of another estate. The first two carry, respectively, civil and criminal liabilities, and would prevent them from being able to obtain the interest of the other joint tenant(s) should the other joint tenant(s) die before the bankrupt/criminally liable tenant dies.

For a successor to the bankrupt/criminally liable/merging co-owner, they will of course be inheriting that which the co-owner is entitled to following the severance. 

TENANCIES WITHOUT THE FOUR UNITIES

The prior section dealt with severance of a joint tenancy. In that scenario, it is accepted that the parties were in a joint tenancy at some point up until an alleged severance. But what if the validity of the joint tenancy itself is called into question? In that case, the issue becomes whether the tenancy was a joint tenancy or a tenancy in common at a given time.

To answer the question of whether a joint tenancy is valid we must deal with issues over the four unities. We address the four unities because they are the requirements of a joint tenancy. Without all of them, what was claimed to be a joint tenancy is actually a tenancy in common (AG Securities v Vaughan [1990] 1 A.C. 417 per Fox LJ), and therefore the interests of the parties are allocated according to “shares” rather than as a whole and indivisible interest.

We will therefore look at ways in which parties may be in a dispute over the alleged validity of a joint tenancy based on the unities of interest, title, and time. We will not deal with the unity of possession, because tenancies in common must have that unity.

Given what we have said already, we can sum up the outcomes hoped for by the parties in this manner: successors (and tenants who want to pass on their interest to persons other than the alleged joint tenants) want the unities to not be present. The persons claiming to be joint tenants, on the other hand, want to prove that those four unities are present.

1. Interest: Each tenant must have exactly the same “kind” of interest. How you discern whether the parties have a common type of interest is by looking at distinguishing characteristics between the tenants. For example, are they said to all be freeholders, or are some said to be leaseholders?

A successor would want to show that the parties did not have the same kind of interest, and would do so by pointing to any distinguishing characteristics in the legal status of the rights amongst the tenants. Conversely, the persons claiming to be joint tenants would rely on evidence that their interests were all equal at the relevant times.

2. Title: Every tenant must derive their title from the same document or act. If the tenants obtained their interest in the property via different means (and therefore possibly at different times; see paragraph on ‘Time’ immediately below) then the tenancy is a tenancy in common rather than a joint tenancy.

For either party, establishing that title was obtained either in unison or separately should be straightforward. As with interest, it is beneficial to the other joint tenant(s) if the deceased joint tenant had taken ownership via the same means as the remaining joint tenant(s). Conversely, any successors of the deceased joint tenant would want to show that the joint tenants’ interests are derived from separate sources. An example of a separate source would be where the tenants obtained their interests via separate grants over the land.

3. Time: As with title above, all tenants must have obtained their interest at the same time in order for this unity to be satisfied. And in repeating what was said at the preceding paragraph, it is in the interests of the remaining joint tenant(s) that the deceased joint tenant had taken ownership at the same time as the remaining joint tenant(s), whilst hopeful successors of the deceased tenant would hope for evidence that the interests were obtained at separate times. What defines a separate ‘time’ is a question of fact and degree. It is submitted that if event A is contemporaneous, i.e. happening within moments of event B, then both events A and B can be said to have occurred at the same time for the purposes of the four unities.

DISPUTES BETWEEN TENANTS IN COMMON

Thus far the discussion has focused on disputes between co-owning joint tenants and named successors. However, questions may also focus on disputes between tenants in common. Usually, tenants in common lack the necessary powers to take the actions listed below, but trustees and the courts do have such powers. Here are some of the common disputes:

1. Physical demarcation: As with joint tenancies, tenants in common are unified in rights of possession over the land. One of the acts that such a unity prohibits is the demarcation or separation of land by one tenant in common where that demarcation is intended to exclude the other tenants in common from using that land (Bull v Bull [1955] 1 QB 234, CA). However, a court does have the power to manage and potentially restrict the occupation rights of the tenants in common (TOLATA 1996, s.12(1)). One can imagine a problem question therefore in which a tenant in common tries to demarcate land, and then considers asking the court, especially if that tenant in common intends to argue that the property is unsuitable or unavailable for occupation by other tenants in common (TOLATA 1996, s.12(2)).
2. Payment of rent: Given the right of possession that exists between tenants in common, it is also the case that a tenant in common cannot require other tenants in common to pay occupation rent (Henderson v Eason (1851) 17 QB 701). But a tenant in common can be excluded from occupation by a trustee if that tenant in common does not pay rent as required by the trustee (TOLATA 1996, s.13(1)). Where such an imposition is made, that tenant in common required to pay rent can expect to receive ‘compensation’ from the other tenant(s) in common as required by the trustee (TOLATA 1996, s.13(6)(a)).
3. Paying for improvements and maintenance: If a tenant in common offers to pay for maintenance or repairs to the co-owned property, they cannot require the other tenant(s) in common to immediately contribute a share of the cost. However, the tenant in common making the payment can impose a lien on the property, whereby if the property is sold, every tenant in common who has not paid will see a deduction from their proceeds commensurate with the repair costs (Leigh v Dickeson(1884) 15 QBD 60, CA; Re Pavlou (A Bankrupt) [1993]).

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