Severance Lecture

Severance is the name given to the process of converting a joint tenancy into a tenancy in common. It is recommended that you read the chapter on ‘Joint Tenancies and Tenancies in Common’ because there is a significant amount of overlap between that chapter and this one.

This chapter will first discuss the background of severance insofar as it is a process that changes joint tenancies into tenancies in common. The chapter will then discuss the various means by which severance can be undertaken. They include: severance by written notice; severance by an act of a joint tenant ‘operating upon his own share’; severance by mutual agreement; severance by mutual conduct; severance in consequence of unlawful killing; severance by merger of interests; and old archaic means of severance. The chapter will examine how severance impacts on, and is impacted by, family breakdowns. Finally, as with all other chapters, several hands-on examples are provided.

BACKGROUND

As you will recall from your reading of the topic in ‘Joint Tenancies and Tenancies in Common’, a joint tenancy of a legal estate in land is a means of co-owning an estate in land. Holding a legal interest means to be responsible for the administrative responsibilities and duties inherent in the land. A trust of land is essential for the purpose of legal co-ownership (Williams & Glyn’s Bank Ltd v Boland [1981] A.C. 487; Trusts of Land and Appointment of Trustees Act 1996 s.1). Likewise, equitable ownership of the land (meaning the right to enjoy and benefit from the land) requires a trust in land (Law of Property Act 1925, ss.34 and 36).

Of particular importance to joint tenancies are the doctrines of survivorship and the four unities. Survivorship is the process by which one joint tenant takes the interest of another joint tenant wholly upon the death of that other joint tenant. The opposing process is where a tenant (a tenant in common) is able to pass on their interest to another by means of a will. The four unities, meanwhile, are the so-called unities of possession, interest, title, and time. Joint tenancies feature all of these unities, whilst tenancies in common are only required to have unity of possession. Note that this does not preclude tenancies in common from having the other interests; simply that a joint tenancy arises where all four unities are present.

Severance tends to be used for one of two purposes: excluding the future operation of survivorship, or ending the perpetuating existence of the so-called unities of interest and title. Ending the operation of survivorship appears to be of greater use between the joint tenants, whereas ending the existence of those particular unities applies to dealings between a joint tenant and a stranger.

Effect

The act of severance produces among the former joint tenants a share in the property that is equal to the shares of all other tenants in common: it is said that a newly-established tenancy in common will grant that tenant in common 1/nth of the property beneficially, n being the current number of the joint tenants (Nielson-Jones v Fedden [1975] Ch 222, ChD per Walton J). Unless there are only two joint tenants, the severance will affect only the severing tenant(s). For example, if X, Y, and Z are joint tenants, and Z severs, then Z will be a tenant in common with a one-third share (given there are three tenants) but X and Y will remain as joint tenants over the remaining two-thirds share (Wright v Gibbons (1949) 78 CLR 313 (HC of Australia) per Dixon J). If Y died, X becomes the joint tenant over that two-thirds share by survivorship.

Limits on severance

There are some limits on the operation of severance. Firstly, it cannot be effected by a will. It must be effected inter vivos, meaning during the lifetime of the person intending to sever the interest. Second, it cannot be brought about for legal estates; it can only be effected for equitable shares in an estate (Law of Property Act 1925, s.36(2)). As to the latter limitation, it means that co-ownership will automatically and irreversibly take the form of joint tenancy. A tenant who acts to sever their interest will only be acting on their equitable interest, and cannot dispose of their legal interest unless they “release” their legal estate to the other joint tenant(s), or if they are removed from the trust (TOLATA 1996 s.19), or upon their death. Alternatively, it can be ended upon disposal of the estate (Law of Property Act 1925, ss. 36(2)-(3)).

There is an exception to the rule that severance cannot be effected by will, namely an execution of mutual wills by joint tenants intending to bring about a severance. Such a position arises where the course of dealing between the parties gives rise to the inference that both parties mutually considered their interests as tenancies in common and were prepared to put that inference forward in writing (Williams v Hensman 70 E.R. 862 per Page Wood V-C). Such a mutual intention must be unambiguous. That unambiguity can be perceived as long-held assumptions between the parties that they were holding as tenancies in common (Gore and Snell v Carpenter (1990) 60 P & CR 456, ChD) or - directly addressing the wills point - where the two parties each direct in their respective wills that they each dispose of their ‘share’ in the land (Re Wilford’s Estate (1879) 11 Ch D 267).

Evidence of mutual dealing is very particular: for example, separating a living-space into separate and self-contained areas does not indicate an intention to sever (Greenfield v Greenfield (1979) 38 P & CR 570, ChD), nor will negotiations to sever the interests be sufficient if those negotiations are left incomplete (Harris v Goddard [1983] 1 WLR 1203, CA).

Key Points:

• A joint tenancy is severable, meaning it can be destroyed and replaced by a tenancy in common.
• Sir William Page Wood V-C envisaged three means by which a joint tenancy can be severed.
• Severance, according to Sir William V-C, is either accomplished unilaterally by a joint tenant ‘operating upon their own share’, or is done by all joint tenants, i.e. mutual agreement or mutual conduct. Severance is not accomplished where only some of the joint tenants are in an accord regarding severance.

HOW TO SEVER

When intending to sever a joint tenancy, the burden of proof in establishing severance has occurred lies with the party asserting that severance has indeed occurred (Re Denny [1947] L.J.R. 1029). Severance can be effected by one of several methods:

a) Severance by written notice (Law of Property Act 1925, s.36(2))

Under this method, a tenant gives a ‘notice in writing’ to the other tenants of their own ‘desire’ to sever the tenancy (Law of Property Act 1925, s.36(2)). There are several advantages and limitations to using severance by written notice, which may be summarised as follows:

• No consent is required from the other joint tenants (Harris v Goddard [1983]). Further, it is not necessary for the notice to be signed and can even be undertaken via an application to the court for a declaration of the rights for each tenant (Re Draper’s Conveyance [1969] 1 Ch 486, ChD).
• However, for the written notice to be effective, it must be served on all existing tenants. It must express an intention to sever with immediate effect, and not at some time in the future (Harris v Goddard [1983]).
• Additionally, it might be argued that this method of notice does not apply where the names on the legal title are not identical to the beneficiaries behind the trust, meaning for example where those with legal titles are simply holding the property as joint tenants on trust for others who do not hold the legal title (as per the precise wording of the Law of Property Act 1925, s.36(2)).
• Note that if the joint tenants enter into an irrevocable agreement that each joint tenant makes a will in favour of the other, then that would also effect a severance of the joint tenancy (Re Heys (deceased) [1914] P. 192).

Key Points:

• The wife sent a notice of severance to the husband at the husband’s residential address.
• The husband did not read it: he was hospitalised before it arrived.
• The wife sought to prevent the effect of severance by destroying the notice once it had arrived at the address.
• However, destroying it upon receipt did not alter the effect of severance, nor did the fact that the husband never read it alter the severance either.
• In short, once the process of severance is begun by posting notice of severance, the process is irreversible.

b) Severance by an act of a joint tenant ‘operating upon his own share’

There are three methods of severance dating back from the Law of Property Act 1925, s.36(2), that reflect the categories laid down by Page Wood V-C in Williams v Hensman. The first category of the three is any ‘act’ by a joint tenant ‘operating upon his own share.’ This would typically take the form of a joint tenant totally or partially alienating their own share. This method of severance is a unilateral act, which makes it relatively easy to undertake (Harris v Goddard [1983]), and when the joint tenant acting to sever their interest does so, they can effectively conceal that alienation from the other joint tenant(s) (Mortgage Corporation Ltd v Shaire [2001] Ch 743, ChD). Given that it is unilateral and can be done without the knowledge of the other joint tenant(s), this method does have a limitation in its usage: specifically, the person so acting must have intended the act to be final and irrevocable, particularly as it prevents any claim for survivorship for themselves. There are different types of ‘acts’ which could apply:

Transfer inter vivos - given that joint tenancies do not have shares, it is to be inferred that if a joint tenant wishes to act on their ‘share’, they must be presuming that they no longer wish to be regarded as a joint tenant. They are presupposing that the tenancy has effectively been severed. In other words, the presumption that there has been a severance necessarily gives rise to the severance. It must be performed by written disposition or via a constructive trust (Law of Property Act 1925, ss. 53(1)(c), 53(2)).

Alienation by mortgage - If one joint tenant acts to charge or mortgage the jointly held entitlement, either at law or in equity, that charge attaches solely to the interest of that joint tenant as if there had been an outright transfer of that tenant’s “share” (First National Securities Ltd v Hegerty [1985] QB 850, CA). The severance takes effect in equity, whilst their legal interest remains unaffected by the severance.

Involuntary alienation - There are various types of acts which have the effect of severing, even where the alienation is involuntary (i.e. unintended). For example, if a bankruptcy order is made against a joint tenant, by an operation of law that person’s interest is severed and becomes a share (Re Pavlou (A Bankrupt) [1993] 1 WLR 1046, ChD), with their share being now lying with their trustee in bankruptcy upon the appointment of that trustee (Insolvency Act 1986, s.306(1)), and Bedson v Bedson [1965] 2 Q.B. 666). Imposing a charging order in respect of a money judgment against one of the joint tenants will also act to sever the interests (Charging Orders Act 1979 ss.2(1)-(2) and 3(4), Midland Bank Plc v Pike [1988] 2 All E.R. 434).

Acts which are ‘insufficient’ for the purposes of severance

Usually, a testamentary disposition is not in itself sufficient whilst the will is still ambulatory, meaning where the testator is still alive. In this instance, a mere declaration is not enough to displace the rule of survivorship and ius accrescendi over the testamentary disposition. Furthermore, where there is a declaration of an intention to sever, that intention is ineffective if there is no written notice (Corin v Patton (1990) 169 CLR 540 (HC of Australia) per Mason CJ and McHugh J).

c) Severance by mutual agreement

In Williams v Hensman, Page Wood V-C noted that severance might not just be effected unilaterally, but could also come about by way of mutual agreement. This would require the agreement of all the existing joint tenants that the interests should thereafter be severed. The parties are effectively agreeing to ‘relinquish the beneficial interest of a joint tenant… including the right of accretion by survivorship, in return for the share of a tenant in common’ (Corin v Patton (1990) per Deane J). Unlike with unilateral severance, there is no requirement for an enforceable contract, and there may not even need to be anything put in writing (Law of Property (Miscellaneous Provisions) Act 1989, s.2(1)). If in the course of discussions the parties only reach an ‘agreement in principle’ to the idea, then without further evidence of the parties actively consenting to the severance, such agreement in principle would be taken to mean the parties have reserved their right to the joint tenancy, and therefore there is no severance (Gore and Snell v Carpenter (1990)).

Exclusion of survivorship

For severance by mutual agreement to be valid, the parties must have contemplated that they would thereafter be dealing with the property as tenants in common, no longer as joint tenants (Burgess v Rawnsley [1975] Ch 429, CA). The question is whether in their dealing they have agreed to end the rights of survivorship. So when applying this to a problem question, for example, key evidence would be whether the parties have all agreed to transfer their interests to a third party upon death rather than divest their interest to the other joint tenants. Alternatively, an agreement that the proceeds of sale of the given property are to be divided between the tenants in specified proportions will give rise to an act of severance by mutual agreement (Crooke v De Vandes(1805) 11 Ves 330). However, in such a situation, the shares between the parties will actually, by operation of law, be in equal shares rather than in whatever portions the parties had agreed (Hunter v Babbage [1994] 2 FLR 806, ChD).

Key points:

• The parties purchased the property as joint tenants.
• The parties contributed equally towards the purchase price.
• Both parties agree to a severing of one of the party’s interests in the property.
• Later negotiations, which remained incomplete, could not displace the act of severance which had occurred prior.
• With this case, bear in mind that there is some concern over the evidence for the sale of the interest.

d) Severance by mutual conduct

Parties may sever not only by mutual agreement, but also by mutual conduct, which consists of ‘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 key phrases in that passage are:

i) Sufficient to intimate

ii) Interests of all

iii) Mutually treated

iv) Constituting a tenancy in common.

First, ‘Sufficient to intimate’ suggests that there is some threshold to satisfy. Evidence of a mutual understanding is not as straightforward as evidence of mutual agreement, because in an agreement one can point to a specific event or document. Here, the evidence is more circumstantial. The word ‘intimate’ means that the circumstances effectively imply a tenancy in common, meaning nothing has to be said on the subject of severance between the parties. Second, the ‘interests of all’ demonstrates that all of the tenants must have their interests affected by the severance. Third, ‘mutually treated’ means all the tenants treat both their own interests and all the other interests as severed; no joint tenancy remains. Finally, all of these together point to a ‘tenancy in common.’

The conduct must be such that the pattern of dealing between all of the parties is, though not quite unambiguous and explicit enough to constitute a mutual agreement to sever, nevertheless evince a clear common intention to sever the joint tenancy. As with above, it must be clear that the parties to preclude the further operation of survivorship (the key component of joint tenancies). It is also worth emphasising that this means of severance is treated as distinct from severance by mutual agreement (Burgess v Rawnsley [1975]). Ultimately, there must be a consensus between all the joint tenants, as disclosed by a pattern of dealings with the co-owned property, which would in effect exclude the future operation of the right of survivorship (Quigley v Masterson [2011] EWHC 2529 (Ch)).

Such examples of mutual conduct include long-term assumptions held by the parties that the tenancies were in common and not joint (Gore and Snell v Carpenter), or where the parties have subsequently executed wills in which they all refer to ‘shares’ in the estate (Re Wilford’s Estate). The courts have placed great emphasis on the need to show that a mutual understanding exists between all of the joint tenants affected (Davis v Smith [2011] EWCA Civ 1603). The parties need not come to an agreement; there simply has to be evidence that they intend to deal the property in common, for example by the periodic distribution of property between themselves (Re Denny [1947]).

With all that said, mutual conduct is not evidenced by the following:

• Physical conversion of jointly-owned premises into separate and self-contained units (Greenfield v Greenfield (1979)).
• Negotiations between the parties to divide the interest in the property into shares that are inconclusive (Harris v Goddard [1983]).
• Where one party ‘offers to buy out the other for X and the other makes a counter-offer for Y’ (Burgess v Rawnsley [1975] per Sir John Pennycuick).
• Finally, it is not enough that each joint tenant had independently treated the joint tenancy as severed; there has to be a mutual understanding.

Key Points:

• The notice to quit was initially invalid.
• Neither Mr Pilkington’s solicitors nor his daughter, purporting to be his deputy, could represent Mr Pilkington on his behalf.
• However, Mrs Masterson simply accepted there was a 50% share each.

e) Severance in consequence of unlawful killing

This rule flows from a public policy concern that a joint tenant, criminally implicated in the death of another joint tenant, should not be able to benefit via survivorship from receiving the interest of the deceased (Re K, decd [1985] Ch 85, Ch D).

In cases other than those involving murder, the court has a statutory discretion, though it is limited (Forfeiture Act 1982, s.2(2)) to modify the operation of the forfeiture rule. This is done if, regarding the conduct of the offender and of the deceased and other material circumstances, ‘the justice of the case requires the effect of the rule to be so modified.’

f) Severance by merger of interests

This is a rare scenario, but not impossible. It applies where the four unities inherent in joint tenancies are abolished by a so-called “merger” of interests. This could apply where three joint tenants are for life, but the remainder goes to one in fee simple, and another joint tenant later acquires the remainder. It effects a change of status on the part of the person taking the remainder, rendering them a tenant in common and leaving the remaining tenants as joint tenants.

Another example is if one of the joint tenants goes on to acquire another estate in land in addition to their joint tenancy, then this might act to dissolve the unity of interest, because that joint tenant has interests greater than the other joint tenants. The reason this is the case is due to the doctrine of merger: a greater estate and a lesser estate are both held by the same person, without any intermediate estate, and therefore the lesser estate is incorporated into the greater estate. As to whether this amounts to severance, it is a question of intention of that person acquiring the estate. There is little authority on when a joint tenancy is regarded as being severed by merger (Nielson-Jones v Fedden [1975]).

g) Old forms of ownership

Prior to 1 January 1926 there was a form of co-ownership in England known as tenancy by entireties. This type of co-ownership was a type of joint tenancy between husband and wife that could not be severed. Its inseverability was due to its character, reflecting the eternal unity of matrimonial partners. No such tenancies could be lawfully created after 1882 (Married Women’s Property Act 1882, ss.1 and 5), and in 1926 all such tenancies were rendered by operation of law as joint tenancies (Law of Property Act 1925, Schedule 1, Part VI).

FAMILY BREAKDOWN

As seen in the chapter ‘Joint Tenancies and Tenancies in Common’, the courts have attempted to deal with the irretrievable break-up of households and the interests of the respective parties by means of severance. That being said, this area has had problems.

Firstly, a legal joint tenancy of the periodic lease can be problematic because it requires unanimous action by joint tenants. One of the joint tenants can effectively frustrate the process and bring the lease of the family-owned home to an end by simply refusing to enter into a further term (Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478).

Following this case of Monk, further cases under the Human Rights Act 1998 sought to challenge that problem, because it meant service of a notice to quit by a joint tenant of the periodic lease (effectively acting as that refusal we mentioned just now) would bring the lease to an end without any judicial review of the merits of the argument that this refusal disproportionately infringed on loss of property and occupation rights (Articles 1 and 8 of the European Human Rights Convention 1956, as argued in Qazi v Harrow LBC [2003] UKHL 43). This led to the Supreme Court modifying the position in Manchester City Council v Pinnock [2010] UKSC 45. In the case of Pinnock, the court held as follows:

a) Where a public authority seeks possession,

b) Of a person’s home,

c) The dispossessed occupier can seek a review of proportionality

d) Due to damage done under article 8.

e) This ground can only be argued by the occupier;

f) The matter can be dealt with summarily.

g) Normally, the public authority will not be refused possession,

h) But the court must review it if the matter is raised

i) And must resolve any factual issues in order to complete the review.

As has been discussed in the chapter ‘Joint Tenancies and Tenancies in Common’, a further problem is that the concept of joint tenancies is not always consistent with social norms about family breakdown and “blended” families, especially where co-habitation of a couple, previously married or in a civil partnership, is terminated, as per Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2010] EWCA Civ 578. And as mentioned in that chapter, the court has held that where a joint tenancy exists in a household where there is family breakdown, the joint tenancy is severed and becomes a tenancy in common.

The starting point in these case is that equity follows the law and the equitable interests would mirror the joint legal interests. However, it was also said that these interests were held ‘equally.’ This implies a concept of shares, which of course is abhorrent in joint tenancy orthodoxy. The courts were imposing this notion in order to better quantify who gets what in these cases: in short, how the land should be divided.

The cases brought about an idea of equal division - meaning each husband/wife/civil partner held a share of 50% of the land. This equal division was then subject to a process of factual scrutiny by which the court would determine whether the parties, by express agreement or by course of dealing, had established that their shares were unequal.

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