Jacobs v Seward (1872) LR 5 HL 464, HL
Equitable tenants in common and the unity of possession.
Facts
Miss Lawrence and Miss Senior were tenants in common of three fields used for growing crop. Miss Senior served the plaintiff a notice to quit his tenancy of the fields, however, unbeknownst, to Miss Senior, Miss Lawrence served a lease to continue his tenancy at a yearly fee. The plaintiff, on account of Miss Lawrence, continued tenancy. Meanwhile, the defendant entered the property on the authority of Miss Senior, removed crop and placed a lock on the gate. The plaintiff claimed that the defendant acted in trespass.
Issues
The issue concerned the rights of a tenant in common against his/her co-tenant in common in respect of a co-tenant’s alleged ouster and/or an action of trespass on the property.
Decision/Outcome
The Court propounded the principle that, “so long as a tenant in common is only exercising lawfully the rights he has as tenant in common, no action can lie against him by his co-tenant.” (474). Thus, unless there is a case of legal “ouster” of a tenant, there cannot be a crime of trespass by a co-tenant. On the facts, the Court, firstly, held that when two persons are tenants in common of property, both have the right to enjoyment of the property and chattel connected to the property; the placement of the lock on the gate and the removal of the crop by one co-tenant does not constitute a legal ouster from the property. Secondly, in light of the absence of a legal exclusion nor an unlawful infringement of the co-tenant’s rights, a tenant in common’s entry on the property, no action can be raised against a co-tenant in common in property for the entry and use of the land.
Updated 21 March 2026
This case note accurately summarises the House of Lords decision in Jacobs v Seward (1872) LR 5 HL 464. The core legal principles described — that a tenant in common cannot bring an action in trespass against a co-tenant unless there has been a legal ouster, and that a co-tenant exercising their ordinary rights of enjoyment over shared property does not thereby commit trespass — remain good law. These principles continue to be cited in English land law and are reflected in standard academic treatments of co-ownership and unity of possession.
No statutory provision has abrogated these principles. The relevant modern legislative framework governing co-ownership of land is found in the Trusts of Land and Appointment of Trustees Act 1996, which introduced the trust of land regime and provides statutory mechanisms (including applications to court under section 14) for resolving disputes between co-owners. However, the 1996 Act does not alter the common law position on trespass between co-tenants as stated in Jacobs v Seward, and the case remains relevant authority for the proposition that unity of possession is a defining feature of tenancy in common. Readers should note that in practice, disputes between co-owners today are more commonly resolved through the 1996 Act framework rather than by trespass actions alone.
