⇒ Land may be owned by one person or co-owned (e.g. by a couple).

⇒ There are two forms of co-ownership: Joint Tenancy and Tenancy in Common.

⇒ In a joint tenancy, every person is entitled to the whole of that land (i.e. there are no distinct shares) → "neither loves fractions or divisions of estates" (Fisher v Wigg (1700)).

⇒ Furthermore, before a joint tenancy can exist, the 'four unities' must be present (see the notes on the 'four unities' here).

⇒ Since a joint tenant is not regarded as having a distinct share in the co-owned land, he/she is not able to dispose of his or her interest by will on death, nor will it pass on intestacy if no will is made.

• Instead, on the death of one joint tenant, the remaining joint tenants obtain the interest of the deceased.
• The last survivor of the group, therefore, would become the sole beneficial owner of the land.

⇒ The 'right of survivorship' dictates that if joint tenants die simultaneously (e.g. house gets blown up), it will be taken that the oldest person died first, whereas the youngest person died last (Law of Property Act 1925, section 184). This is important for dealing with the title to the property. See, for example, Hickman v Peacey [1945].

⇒ Exception to the right of survivorship (otherwise known as jus accrescendi):

• Forefeiture: if you kill someone to inherit their money/property (e.g. you kill your flatmates so you can get the house for yourself), you will not be able to inherit that money/property (i.e. you cannot benefit from the right of survivorship). Note, however, the rule can be modified in cases other than murder (Re K [1986]).

⇒ Prior to the Law of Property Act 1925, co-owners were able to hold the legal estate as either joint tenants or tenants in common.

⇒ After the Law of Property Act 1925, tenancies in common of the leal estate could NO longer be created (Law of Property Act 1925, section 34(1))

⇒ In other words, there cannot be a legal tenancy in common: as far as the law in concerned, legal co-ownership is always as a joint tenancy (Law of Property Act 1925, section 1(6))

⇒ In equity, co-ownership can be either as a joint tenancy or as a tenancy in common. So, the legal joint tenants must then hold the property on trust for themselves (i.e. take the equitable interest in the property) as joint tenants; as tenants in common in equal shares; or as tenants in common in unequal shares.

⇒ When land is registered (e.g. on its sale or other conveyance), the transferees (e.g. the purchasers) can state the (equitable) basis on which the land is held: as joint tenants; as tenants in common in equal shares; or as tenants in common in unequal shares. See the TR1 form, where this information is filled in (section 10 of the form).

⇒ However, failure to complete this question will not cause the transfer to fail: the land registry will assume you hold the equitable interest as joint tenants if not filled in.

⇒ Finally, the Trustee Act 1925, section 34(2), limits the number of trustees to 4 → in other words, there can only be a maximum of 4 legal owners of the co-owned legal estate, holding it for the beneficial (i.e. equitable) owners.

⇒ A tenancy in common can only exist in equity. Thus, a tenancy in common simpy provides an alternative way in which co-owners can hold the beneficial (equitable) interest in their property i.e. instead of holding the beneficial interest as joint tenants, the beneficial interest may be held by legal co-owners as tenants in common.

• When two or more people own land under a tenancy in common, it is often said that they have 'undivided shares in land' → in other words, a tenant in common can point to a precise share of the land occupied (e.g. one half of it, one fifth, one quarter, etc.), even though the land at present is undivided and treated by the occupants as a single unit.
• So, unlike a joint tenancy, a tenancy in common is distinguished by the fact that each co-owner has a distinct and quantifiable share of the land (although this does not mean that a particular tenant can physically demarcate a portion of the land and claim it as his own).

⇒ The right of survivorship (i.e. jus accrescendi) does NOT apply to a tenancy in common → this is why a tenancy in common is often preferred when the co-owners are not closely connected.

⇒ None of the four unities (see the notes on the 'four unities' here), apart from unity of possession, are necessary in a tenancy in common. However, the other three unities may be present anyway.

⇒ A tenancy in common can arise through the ‘severance’ of a joint tenancy.

• This means that the parties to an equitable joint tenancy can choose to terminate that form of co-ownership (i.e. terminate the equitable joint tenancy) during their lives and be governed instead by a regime of an equitable tenancy in common.
• This is more often than not driven by the desire to avoid the right of survivorship, especially after a relationship breakdown.

⇒ You can only sever an equitable joint tenancy (Law of Property Act 1925, section 36(2)), and it is primarily used to avoid the right of survivorship.

1. Notice in writing (Law of Property Act 1925, section 36(2)).
2. Such other acts or things as would, in the case of a personal estate, have been effectual to sever the tenancy in equity (Law of Property Act 1925, section 36(2)).

⇒ Notice to sever a joint tenancy by a tenant must be given to all the other joint tenants, by leaving it at their last known address or by posting it to that address by registered or recorded delivery (Law of Property Act 1925, section 196(3) and (4); Recorded Delivery Service Act 1962, s 1 and schedule 1, para 1).

⇒ Once the notice has been served in one of these ways it will be effective and will sever the joint tenancy, even if the co-owner does not in fact receive it e.g. Re 88 Berkeley Road NW9 [1971].

⇒ Also see the case of Kinch v Bullard [1998].

⇒ It is also possible to sever a joint tenancy through such other acts or things as would, in the case of a personal estate, have been effectual to sever the tenancy in equity (Law of Property Act 1925, section 36(2)). In other words, it is also possible to sever a joint tenancy through other acts/means other than notice in writing...

⇒ Sir William Page Wood VC in Williams v Hensman (1861) provided 3 ‘acts or things' that would enable one to sever the joint tenancy:

1. An act of any person interested operating upon his own share.
• Where one joint tenant mortgages or sells their interest or becomes bankrupt, this will sever the joint tenancy e.g. Re Pavlou [1993] → this creates severance because it has the effect of destroying one of the unities essential to the joint tenancy: that of title.
• If a joint tenant makes a will leaving their share in the property to another person, however, that does not sever the joint tenancy: Carr v Isard [2006].
2. Mutual agreement.
• Severance can be effected by the agreement of all the joint tenants → this agreement need not be legally binding.
• There must be communication and agreement. See, Carr v Isard [2006].
• Burgess v Rawnsley [1975]: The agreement between Mr Rawnsley and Mr Honick that Rawnsley would sell her share was sufficient to sever the joint interest, as this was evidence of an intention that the property should be held in common (i.e. as tenants in common).
3. Course of dealing.
• "A course of dealing is where over the years the parties have dealt with their interests in the property on the footing that they are interests in common and are not joint" (Gore and Snell v Carpenter (1990)).
• In other words, if the 'joint tenants' act like tenants in common then the court may determine this is what they actually are.

⇒ Property purchased as a family home is presumed to be held as an equitable joint tenancy (Stack v Dowden [2007]).

⇒ Property purchased for commercial purpose is presumed to be held as an equitable tenancy in common (Malayan Credit [1986])

⇒ Property purchased in unequal shares is presumed to be held as an equitable tenancy in common (Bull v Bull [1955]).

⇒ Under normal cicrumstances, all the owners of the property must agree before the property can be sold and the proceeds divided

⇒ If one tenant, whether joint or in common, does not consent to the sale, any other person with an interest in the property can apply to the court for an order to sell the land, under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) section 14-15.

⇒ Section 14 of TOLATA confers very wide powers on the court to make orders and determine the shares in which the land is held.

⇒ Section 15 of TOLATA sets out the matters which the court should take into account when making the order.

⇒ A vital point in cases of joint ownership is exactly how the beneficial interests are recorded on the transfer - Form TR1.

⇒ Some other helpful legal resources on joint tenancies and tenancies in common:

• Joint Tenancy v Tenancy in Common
• Co-op Legal Services: Joint Tenancies and Tenancies in Common