Burgess v Rawnsley [1975] EWCA Civ 2; [1975] Ch 429
Joint Tenancy – Severance – Conditions necessary for severance
Facts
Mr Honick and Mrs Rawnsley bought a property as beneficial joint tenants. They had intended to occupy different parts of the house. Mr Honick hoped that they would marry, but he had never mentioned marriage to Mrs Rawnsley and she had never contemplated it. She intended to occupy the upstairs flat, but he did not allow her to move in. She then agreed to sell her interest in the property to Mr Honick for £750. This price was originally agreed, but before the sale was completed Mrs Rawnsley changed her mind because she wanted a better price. Mr Honick then died. His estate wished to establish severance of the joint tenancy, whereas Mrs Rawnsley sought to show that the joint tenancy had not been severed and that she was entitled to survivorship of the property.
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Issues
Whether or not the joint tenancy had been severed. Whether or not the parties had severed the joint tenancy by coming to an agreement on the sale of her interest at a price of £750 even if this was not in fact completed.
Decision/Outcome
Mrs Rawnsley’s appeal was dismissed. The court upheld the finding that she had agreed to sell her share to Mr Honick for £750. Although the oral agreement was not enforceable by action under s40 Law of Property Act 1925, that did not prevent it from severing the beneficial joint tenancy. The agreement showed a common intention to treat their interests as separate shares. Its significance was not that a court could compel the sale, and her subsequent withdrawal did not undo the severance.
The legal estate passed to Mrs Rawnsley by survivorship, but she held the beneficial interest for herself and Mr Honick’s estate in equal shares. All three judges upheld severance by agreement. Denning MR also considered that their course of dealing would suffice without a firm agreement. Browne LJ did not decide that alternative ground, and Sir John Pennycuick thought a mere offer and counter-offer on these facts would not establish a common intention to sever.
Browne LJ and Sir John Pennycuick also rejected a resulting trust based on Mr Honick’s uncommunicated expectation of marriage: the parties had not shared that purpose. Denning MR took a different view on that point, but the agreement to sever was sufficient to dispose of the appeal.
Judgment: [1975] EWCA Civ 2. Parallel citations: [1975] Ch 429; [1975] 3 All ER 142; [1975] 3 WLR 99.
