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Law of Real Property I

Concurrent Interests
Where 2 or more persons become entitled to possession of land simultaneously, they are said to hold
concurrent interests in the land, or to be co-owners.
In the modern law there are 2 types of co-ownership: 1. Joint Tenancy (J/T)
2. Tenancy in Common (T/C)

Joint Tenancy (J/T)


J/T occurs where land is conveyed to 2 or more persons without words of severance, i.e.
without words to show that they are to take separate and distinct shares.
The essence of J/T is that from the outside there is one title and the joint tenants are collectively
regarded as a single owner, but as between themselves they have separate and equal rights:
Panton v. Roulstone (1976) 24 WIR 462 per Watkins JA, in beneficial J/T each joint tenant
holds nothing by himself but holds the whole together with his fellows.
The intimate nature of joint tenancy is shown by its 2 principle features: 1. Right of Survivorship/ Ius Accrescendi
2. The 4 Unities Title, Time, Interest, Possession

Right of Survivorship/ Ius Accrescendi

On the death of one joint tenant, his interest automatically accrues to the surviving joint tenants,
so that he has no interest to transfer via will or intestacy. This is the effect of the maxim totum
tenet et nihill tenet:
Palmer v. Treasurer Because he did not have any share of his own, on his death the estate is
simplyfreed from participation by him.
A/c to Megarry & Wade on the death of one joint tenant, his interest in the land passes to the other
joint tenants by the right of survivorship (jus accrescendi). This process continues until there is one
survivor, who then holds the land as the sole owner.
At C/L, if there could be no right of survivorship there could be no J/T, e.g. a corporation could
not therefore be a joint tenant because it could never die. H/e, it is important to note the effect of
the Bodies Corporate (J/T) Act 1899 banks and other corporations now act as trustees.

Where the circumstances of the death of the joint tenants make it difficult to determine who died
first, e.g. where all the joint tenants die in an accident, at C/L there could no right of
survivorship; the respective heirs of the deceased joint tenants would inherit the estate as joint
tenants Bradshaw v. Toulmin.
H/e, in some jurisdictions Statute resolves the question as to who is deemed the survivor LPA
1925 Succession Act 1981 s.2 (2) Trinidad & Tobago Succession Act 1985 Bdos Cap. 239
s.105 provides that, in the event of uncertainty as to who predeceased the other, the younger is
deemed to have survived the elder except where the Court decides otherwise, t/fore the J/T
continues with the heirs of the younger person.
A joint tenant can avoid the incidence of ius accrescendi by destroying the J/T and converting it
into a Tenancy in Common (T/C), i.e. by disposing of his share in the joint estate in an inter
vivos transaction. Ius accrescendi does not apply to a T/C.

The 4 Unities

The 4 Unities of J/T are: - possession, interest, title and time.


The 4 Unities must be present for a J/T to exist, thus anything which accords a distinctive and
exclusive claim to property destroys the J/T and makes it a T/C.
Unity of Possession
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common to all forms of co-ownership;

each joint tenant is entitled to physical possession of the whole land;

no tenant can point to any part of the land as his own, to the exclusion of the others;

each tenant is entitled to enjoy the fruits of possession, such as rents and other profits.
Unity of Interest

each joint tenants interest in the property must be of the same extent, nature and
duration, e.g. a freeholder and a leaseholder cannot be joint tenants;
the unity of interest requires that any transaction involving a 3rd party affecting the
estate can only be effected if all the joint tenants concur and execute it:
Singh v. Mortimer (1967) 10 WIR 65 the Ct. App. Guyana held by a majority that,
since the intention was to sell and convey the whole estate, the contract was not
effective as it was not signed by the sister (the deceased co-tenant).
Joseph v. Joseph (1961) 3 WIR 78 in Guyana, a co-tenant whose interest has not
been quantified is entitled to oppose transport of a property of which he is a joint
tenant or tenant in common whether in equity or at law.

Unity of Title

each joint tenants interest must be derived from the same instrument, i.e. the same
conveyance or will, or where they claim title by Adverse Possession, they must have
taken possession simultaneously.

Unity of Time
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the interest of each tenant must vest at the same time;


Unity of Time differs from Unity of Title, for the parties may derive their interest
from the same document but have their respective estates vested in interest at
different dates;
The exception to this requirement is in respect to Wills and Trusts, e.g. if there is a
Trust for the benefit of several persons, and some are not yet born or ascertained, the
existing beneficiaries will hold jointly with the others when they are born or
ascertained Muttons Case
A conveyance by a bachelor to the use of himself and the wife he might marry will
operate to create a J/T on his marriage.

Tenancy in Common (T/C)


T/C differs significantly from J/T in that: 1. There is no Right of Survivorship
-

On the death of a tenant in common his estate passes to his devisee or heir. It does
not merge into and enlarge the estate of the surviving co-tenant.

2. The tenants hold in undivided shares


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Each tenant has a distinct fixed share in the property, but the property is treated as a
single unit.
The Unity of Possession Doctrine explains the fact that though the share of a tenant in
common is precisely allocated, he cannot lay an exclusive claim to any portion of the
property.
The share of a tenant in common is so distinct and recognized that on his death it
cannot be altered; it is inheritable and devisable.
Other than Unity of Possession the other 3 unities need not be present for a T/C.

Methods of Creation
Joint Tenancy
J/T is created where land is granted to 2 or more persons with: (a) Words of severance, e.g. in equal shares; equally; to be divided amongst; shares
respectively.
Christian v. Mitchell Lee (1969) 13 WIR 302 the wording of the devisee presented a
problem of interpretation. On the death of Adeline Edwards, the administrator of her
estate contended that the words the shares respectively referred to the separate and

distinct shares of Edwards (deceased) and Mitchell-Lee, and t/fore, the grant created a
T/C with the result that, on the death of Edwards, her share passed to her estate. This
argument was rejected by the trial judge, who considered the word share as indicating
the property devised and not a part of it. The Ct. App. Overruled the decision on the
ground that, the words bear their usual connotation of division and distribution.
They indicate the intention of the grantor was that each of his daughters was to have
a share in the properties conveyed, and that the interests conveyed to them in the
premises were to be taken by them separately; in effect, that they were to hold as
tenants in common.
(b) where equity treats a J/T at law as a T/C.
(c) Where a joint tenant severs his J/T by alienation of a greater interest, agreement or
course of dealing Williams v. Hensman.
(d) One of the 4 Unities is missing.
(e) Where equity presumes a T/C, equity will prevail to impose a T/C on the tenants who
will retain the legal title as joint tenants, but hold the legal J/T subject to their
interests, which will be held under a T/C.

Tenancy in Common
T/C arises where a J/T does not exist for one or more of the following reasons: (a) There are words of severance, e.g. where the property is conveyed or devised to
share and share alike
(b) Any one of the Unities is missing;
(c) Where equity presumes a T/C;
(d) Where Statute presumes T/C, e.g. Antigua, Real Property Ordinance 1873, Cap. 289
s.15 Dominica Real Property Act, 1873 Cap. 219 s.14.

Equitable Presumption of Tenancy in Common


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Whereas the C/L favored J/T, equity has always leaned in favor of T/C, as equity
preferred the certainty and equality of a T/C to the element of chance, which the ius
accrescendi of a J/T introduced.
Equitys abhorrence for J/T is manifested in the following situations where equity would treat
persons who are joint tenants at law as tenants in common of the beneficial interest: 1. Purchase money provided in unequal shares
-where 2 or more persons together purchase land in unequal shares a T/C of the property is
presumed in equity, and the purchasers take shares proportionate to the amounts advanced by
each Lake v. Gibson (1729) 21 ER 1052
-on the death of one of the persons, the survivor will become entitled at law to the whole
property, but in the eyes of equity he will hold the deceased share in trust for the deceased
personal representatives.
Per Robinson P in Panton v. Roulstone, It is where money is subscribed in unequal shares,
that equity tends to infer a T/C.

-where there are equal contributions the purchasers would hold the property as joint tenants.
Upon the death of one of the parties the survivor would become entitled to the whole
property beneficially, both at law and equity, for where purchase money is advanced equally,
equity will presume that the parties intended the ius accrescendi to apply.
2. Loan on Mortgage
-Where 2 or more persons advance money on mortgage, whether in equal or unequal shares,
equity presumes a T/C.
Morley v. Bird (1798) 3 Ves. 628 If 2 people join in lending money upon a mortgage,
equity says it could not be the intention that the interest in that should survive. Though they
take a joint security, each means to lend his own and take back his own.
- In the event of the death of one of the mortgagees, the survivor becomes a trustee for the
Pers. Rep of the deceased mortgagee to the extent of the deceased mortgagees share of the
loan.
-This rule is unaffected by the practice of inserting a joint account clause in mortgages where
2 or more persons lend money.
-The Joint Account Clause is merely a conveyancing device, which affects the position as
between the mortgagees and mortgagor; it does not affect the presumption of a T/C as
between the mortgages inter se.
3. Partnership Assets
-Ius accrescendi inter mercatores locum non habet the right of survivorship has no place
among merchants.
-Where business partners purchase land as part of their partnership assets they are presumed
to hold as beneficial tenants in common.
- Although the legal estate may be held on a J/T, in equity the surviving partners hold a
deceased partners share on Trust for his estate;
Lake v. Craddock (1732) 24 ER 1011 Where 5 persons joined in buying some waterlogged
land with a view to its improvement by drainage, it was held that they must be presumed to
have acquired the land as tenants in common, as the right of survivorship was incompatible
with a commercial undertaking.
-The presumption extends to where there is no formal partnership agreement between the
parties;
Panton v. Roulstone (1976) 24 WIR 462 Two ladies had purchased 6 parcels of land, taking
conveyances in both their names. There was no evidence as to the extent of their respective
contributions to the purchase price, but a majority of the Jamaican Ct. App. inferred that the
women were business associates and were t/fore tenants in common of the beneficial interest,
and on the death of one, the property did not devolve on the survivor under the ius
accrescendi. In this case, since the parties had acquired the properties as joint tenants, and in

the absence of any evidence that they had used the land in the way of trade or business,
Robinson P was unable to agree that they held the beneficial interests as tenants in common.

Severance of Joint Tenancy


Severance includes any act, which has the effect of destroying the J/T, and this may involve
partition.
-It is the process whereby a J/T is converted into a T/C; avoidance of the incident of
survivorship.
-Where Unity of Possession is destroyed there will be partition, whereby the parties will take
their individual shares and there will be no co-ownership.
-A joint tenant cannot have a separate and distinct share in the land which is co-owned. He is,
h/e, potentially entitled to an equal share in the property with his co-owners.
-In the leading case of Williams v. Hensman Page-Wood VC identified 3 types of
circumstances which will amount to severance: 1. an act of a joint tenant operating upon his own share;
2. mutual agreement;
3. course of dealing.
1.) Act of a joint tenant operating under his own share
-In order to bring about severance, the act of the joint tenant must be of a final and
irrevocable character, which effectively estops him from claiming any interest in the subject
matter of the property Re Wilks [1891] 3 Ch. 59
(a) Alienation
-Total or partial alienation of his interest by a joint tenant is the clearest type of act
within this head.
-Where a joint tenant alienates his interest inter vivos, his J/T is severed and the
transferee takes as a tenant in common, since he has no Unity of Title with the other
joint tenants. N.B. the other joint tenants remain joint tenants, i.e. severance does not
affect them.
-Severance by alienation also occurs where a joint tenant: (a) mortgages his interest York v. Stone.
(b) becomes bankrupt Re Rushton.
-Equity regards that as done which ought to be done, thus a J/T of an equitable
interest will be severed by an enforceable contract to alienate the interest Burgess v.
Rawnsley.

Gamble v. Hankle (1990) 27 JLR 115 P and her husband had been registered as joint proprietors of
certain land. After her husbands death P claimed to be solely entitled to the property by virtue of
the ius accrescendi. However, during Ps husband lifetime he had purported to convey the land to
the D by a deed of gift. Issue Did the deed of gift effect severance of the J/T? Held: - The D/G had
effected severance, notwithstanding that the deed was not in the form stipulated in the Registration
of Titles Act. A/c to Wolfe J, the D/G was an act which came within the ambit of the first 3 methods
of severance mentioned by Page-Wood VC in Williams v. Hensman an act of a joint tenant
operating under his own share.
(b) Mutual Agreement
An agreement entered into by joint tenants to hold as tenants in common can have the effect of
severance.
-Where the conduct of the joint tenants shows a mutual intention to destroy the J/T, the Courts will
give effect to that intention: Gould v. Kemp A letter from A to B, in which A engages to secure for Bs family a moiety of a
fund, in which A and B are interested in as joint tenants, is a severance of the J/T. Per Brougham LC
relying on Frewen v. Rolfe, This shows that the bare agreement has the force of actual severance
and severance exists even where the agreement is yet to be performed.
- A leading example of severance of a J/T by mutual agreement is the case of:
Burgess v. Rawnlsey [1975] 3 AER 142 An elderly couple, H and R, joined in the purchase of a
house, taking a conveyance of the legal title upon trust for sale for themselves as beneficial joint
tenants, each providing half the purchase price. When the relationship broke down, H negotiated
with R to buy her out, and there was evidence that R had orally agreed to sell her interest to H for a
specified price. R later repudiated the agreement and demanded a higher price, but H died b/fore the
negotiations could continue. HELD: - H had effectively severed the J/T before his death and his
estate was accordingly entitled to a share in the proceeds of sale of the property.
Unilateral Declaration
It is somewhat unclear whether Unilateral Declaration by one of the parties is enough for severance.
The authorities are unsettled on this issue.
Old C/L position: -Mere declaration is not effective to sever a legal J/T Lord Hardwicke in Patriche v. Powlet (1740)
-Per Lord Harlow in Perkins v. Baynton, I do not know that a demand will sever a J/T.
-Re Wilks, Child v. Bulmer It was held that proceedings for the payment of a share in a fund would
not amount to severance if the proceedings did not end in an order of the Court, which could not be
obtained before the death of the petitioner.
-Nielson-Jones v. Fedden [1974] 3 AER 38 A wife who had a J/T with her husband in their
matrimonial home signed a document authorizing the husband to sell the home and employ the
proceeds to his new home. HELD: - The memorandum could not be read as a severance of the joint

beneficial interest, which could not be severed by a unilateral declaration of intention to sever; per
Walton J, a mere unilateral declaration does not shatter any of the essential Unities.
Contrast Cases
Hawkesley v. May [1956] 1 QB 304 A letter from a joint tenant to a co-tenant requesting that his
dividends be paid into a particular account constituted severance.
Re Drapers Conveyance [1969] 1 Ch. 486 The institution of legal proceedings for a determination
of question of between husband and wife and a prayer for an order that the matrimonial property be
sold and the proceeds distributed in accordance with their respective interests, supported by an
affidavit in which the wife claimed to entitled to a share, could effect severance. Per Plowman J,
A decision by one of a number of joint tenants of his intention to sever operates as a severance.
Burgess v. Rawnsley [1975] 1 Ch. 429 The agreement was sufficient to sever the beneficial J/T,
even though it was not specifically enforceable.
There are statements in the various judgments which tend to support Hawkesley v. May and Re
Drapers Conveyance as establishing that a unilateral declaration is sufficient to sever a J/T. Lord
Denning and Lord Brown both subscribe to the view that a unilateral declaration is sufficient to
sever a J/T. However, Lord Pennycuick did not accept such a proposition.
On the balance of the conflicting authorities, it can be gleaned that Lord Dennings view is the
preferred view, and this derives support from Snells Principles of Equity:
-Gibson v. Walton (1992) 28 Barb. LR 113 and Stuart v. Kirton (1994) Barb. LR a joint tenants
filing of a writ and seeking an order of sale of the property and equal distribution of the proceeds of
sale, is sufficient for severance.
(c) Course of Dealing
-Severance under this head does not require any express act of severance, nor any agreement or
declaration of trust.
-All that is required is a consensus b/w the joint tenants, arising in the course of dealing with the
co-owned property, which effectively excludes the future operation of a right of survivorship Gray,
Elements of Land Law.
Other Methods of Severance
(d) Acquisition of Greater Interest
-Where a joint tenant subsequently acquires an additional estate in the land, the unity of
interest b/w himself and the other joint tenants is destroyed and the J/T is severed.
Wiscots Case (1599) 76 ER 555
(e) By Homicide
-Where a joint tenant kills a co-tenant he is denied the right of survivorship. Equity will not
allow him to benefit from his own crime through the Doctrine of Ius Accrescendi.
-At law the ius accrescendi will allow him to have the whole estate, but in equity he would
hold the legal title subject to the beneficial interest of himself and the estate of his victim.

Note:- In Belize and the UK there is no Severance as Tenants-In-Common cannot exist as a legal
estate.

Partition
-Under the C/L it is permissible for all the co-owners of full age to partition the land if they all agree.
-The Unity of Possession will be destroyed and each of them will own his allotted piece exclusively.
-Partition is only possible where they all agree, and the agreement is sealed.
Note: - The Partition Acts 1539 and 1540 (UK) conferred a statutory right to bring an action to
compel partition by means of a writ of partition.
-The Act has been adopted by most of the Caribbean territories; where there is no local legislation
conferring jurisdiction for partition, the Acts can be invoked as statutes of general application. The
effect is that each co-owner will obtain a precise share out of the proceeds of sale.

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