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Real Property Law

Co-Ownership

Co-Ownership
• where 2+ people become entitled to possession of land simultaneously they are said to
hold concurrent interests in the land and become co-owners
• there are two types either joint tenants (JT) or tenants in common (TIC)

Joint Tenancy
—> Nature
• where land is conveyed/devised to 2+ people without ‘words of severance' 
• i
...
words that indicate that each person is to take a separate share (Blackacre is
devised to ‘Bill and Ben in fee simple’)
• there’s ONE title, the joint tenants are collectively a SINGLE owner, even thought between
themselves they have separate rights (i
...
right to sever a joint tenancy) 
• each joint tenant has equal rights in the land 
—> PITT
• there’s unity between joints tenants: for a JT to exist, the 4 unities must be present
1) unity of possession
• 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
• each tenant is entitled to enjoy the fruits of possession (e
...
rent)  
2) unity of interest 
• each joint tenant’s interest in the land must be of the same nature and duration 
• e
...
both must be freeholders or both leaseholders 
3) unity of title 
• joint tenants must have derived their titles from the same document (same will or
conveyance) 
• where they claim title by adverse possession, they must have taken possession
simultaneously 
3) unity of time 
• interest of each tenant must vest at the same time 
• where there is unity of title, there will usually be unity of time but not always 
• if land is conveyed to X for life, remainder to heirs Y and Z, but Y and Z die at different
times during X’s lifetime, Y and Z’s heirs cannot be joint tenants since there is no unity
of time, their interests have been acquired at different times 

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Co-Ownership

—> Ius Accrescendi
• the right to survivorship
• on the death of one of the joint tenants, his interest automatically accrues to the surviving
joint tenants 
• this guarantees that he has no interest to transfer under his will or intestacy 
• he may avoid this result by severing his joint tenancy during his lifetime and converting
himself into a tenant in common with his own share which he can then pass
—> Severance of JT & Conversion to TIC
• the individual parties are entitled to sever the JT
• three types of circumstances laid down in Williams v Hensman (1861) 70 ER 862,867 that
will cause a JT to avoid the consequences of ius accrescendi by severing his JT to convert
it into a TIC
1) act of a joint tenant ‘operating upon his own share’ (alienation)
• sale, contract to sell, mortgages his interest, files for bankruptcy, litigation, deed of
gift
• where a joint tenant alienates his interest inter vivos, his joint tenancy is severed
and the transferee takes it as a tenant in common since he has no unity of title with
the other joint tenants 
• i
...
if X, Y, and Z are joint tenants and X sells his interest to P, P becomes a tenant in
common for one third of the property and Y and Z are joint tenants of two-thirds, if
Y dies then Z will become entitle to two-thirds by the right of survivorship and P
and Z will be left as tenants in common of one third and two thirds respectively 
• Gamble v Hankle (1990) 27 JLR 115: plaintiff and her husband had been registered
as joint tenants for a piece of land, after his death she claimed sole entitlement to
the property by virtue of ius accrescendi, but the husband in his lifetime purported
to convey the land to the defendant by deed of a gift, question was whether the
deed of gift had effected a severance of the joint tenancy, held that it had
2) mutual agreement 
• the agreement may either provide for severance or it may simply contemplate a dealing
with the property that necessarily involves severance 
• e
...
where joint tenants agree to join in a sale or lease of the property to a third party and
to divide the proceeds between them 
• Burgess v Rawnsley [1975] 3 All ER 142:
• elderly couple H and R joined in the purchase of a house as joint tenants
• each providing half the purchase price
• when the relationship ended H negotiated with R to buy her out and there was
evidence that R orally agreed to sell her interest to H for a specific price

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Real Property Law

Co-Ownership

• R later demanded a higher price but H died before the negotiations finished
• held that H effectively severed the JT before his death and his estate was entitled
to half-share in the proceeds of the sale of the property (i
...
no ius accrescendi and
his half did not go to her)

3) course of dealing (mutual conduct) 
• severance under this head doesn’t require any express act of severance/agreement/
declaration of trust 
• all that is required is a consensus between the joint tenants arising in the course of
dealing with the co-owned property 
• i
...
where spouses who are joint tenants of property negotiate with one another for some
arrangement of their interests on divorce, husband and wife entered into a separation
agreement whereby their jointly owned matrimonial home would be sold and the
proceeds were split equally between them
...

• declaration by one part of an intention to sever will not suffice 
Other methods not laid down in William v Hensman
1) derived from the common law: acquisition of an additional estate in the land
• where a joint tenant subsequently acquires an additional estate in the land, the
unity of interest between himself and the other joint tenants is destroyed and the
joint tenancy is severed 
• e
...
if land is granted to X, Y, and Z as joint tenants for life, with remainder to R in
fee simple, and Y acquires the fee simple from R, Y’s life estate will be merged in
the fee simple and the joint tenancy will be severed, X and Z are left as joint
tenants inter se 
2) derived from statute: severance by written notice (only applied in the UK)
• Section 36(2) of the Law of Property Act 1925 (UK) provided a new method of
severance of a beneficial joint tenancy, by a joint tenant giving notice in writing to
the other joint tenants of his desire to sever
• this method has been introduced in Barbados and Belize
• it is a convenient method of severance because it may be unilateral
• no consent is required from the other joint tenants
• not necessary for the notice to have actually been received by the other tenant 

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Co-Ownership

Tenancy in Common
—> Nature
• TIC arises where land is granted to 2+ people with words of severance (e
...
to be divided
amongst) 
• differs from JT in that:
• the only unity is the unity of possession 
• there is no right of survivorship - TIC may dispose of his share by will/intestacy
• each tenant has a distinct fixed share in the property (i
...
one third) 
• the land itself is undivided and treated as a single unit but if the property were to be sold,
each tenant in common would receive their share of the profit from the sale 
—> Equitable Presumption of TIC
• whereas the common law favoured JT, equity has always leaned in favour of TIC because
equity preferred the equality of a TIC
• four instances where equity presumes that a TIC has been created:
• 1) purchase money provided in unequal shares 
• where 2+ people purchase land together, the purchasers take shares
proportionate to the amounts paid by each person
• e
...
if X pays $75,000 & Y pays $25,000 for land bought together, on X’s death Y
will become entitled to the entire property (in joint tenancy) but in equity, he will
be deemed to be a trustee for X’s estate of his 3/4 shares in the property
• if X & Y paid $50,000 each, upon X’s death, Y would become entitled to the
entire property at law and in equity because the money was put forth equally so
equity will presume that the parties intended the ius accrescendi to apply 
• 2) loan on mortgage
• where 2+ people take a mortgage jointly, whether in equal or unequal shares,
they are joint tenants at law but are treated in equity as tenants in common
• the survivor is a trustee of the deceased’s mortgage shares
• they meant to take a joint security, meaning each person intended to lend his
own money and take back his own money 
• 3) partnership assets
• where business partners purchase land as part of their partnership assets, they
are presumed to do so as tenants in common
• in equity, the surviving partners hold a deceased partner’s share on trust for his
estate
• applies to any joint undertaking with a view to profit, even where there is no
formal partnership agreement between he parties 

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Co-Ownership

• Lake v Craddock (1732) 24 ER 1011: 5 people bought some waterlogged land

with a view to improve its drainage, held that there was no ius accrescendi
because that doctrine is incompatible with a commercial undertaking
• 4) individual business purposes
• business tenants who had paid rent and service charges in agreed proportions
were tenants in common 
• Malayan Credit Ltd v Jack Chia [1986] 1 All ER 711: business tenants who had
paid rent and service charges in agreed proportions were TIC, held that there
were other circumstances in which equity may infer that the beneficial interest is
intended to be held by the grantees as TIC such as where they have several
individual business purposes

Partition
• JT/TIC voluntarily agree to end the co-ownership by dividing (‘partitioning’) the property 
• Partition Act: where co-owners can’t agree to a partition, any one co-owner could bring an
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•

•
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action in court to insist on a partition regardless of inconvenience to other co-owner
where it is impracticable to physically partition the property, the court was given the
power to order sale of the property and the proceeds of sale be appropriately distributed
equally among the co-owners (depending on JT or TIC)
if the party who applies is in the minority, he may request a sale before the court and the
court may order a sale provided that certain requirements are present:
• the number of parties interested
• the minority’s infancy, mentally disabled etc

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