6.2.3 Severance Lecture - Hands on Example
The sections set out above discuss various parts of the law for severance of joint tenancies. This section provides a series of problem questions that probe different areas of the matters we have just been examining. The answers to the questions can be found at the bottom of the page, however you are encouraged to attempt to answer the questions first based on your own recall or notes of the topic before looking at the answers.
Always think about the facts, the relevant statutory provision, the cases that interpret that provision, and what the outcome will be based on how those principles and cases apply to the question. As you may have gathered the Law of Property Act 1925, particularly s.36(2) is especially important. Although you would not be expected to give the full citations of cases you cite (just the names of the parties and the year is usually sufficient, the name of the judge giving the ratio is even better!), you will be expected to accurately cite the relevant sections and subsections of the legislation. Simply reciting the name of the statute in your exam without the corresponding section and subsection will not be sufficient.
Here is a rough guide for severance questions:
1)Look to see if there is a joint tenancy. This is usually indicated by wording like ‘A and B purchased the estate C together at the same time.’
2)Next, look to see if either party is hoping to sever. It is likely they intend to sever because of family breakdown and/or they want to ensure their share of the property is passed on to their beneficiaries in their will.
3)Now look to see if any of the possible measures of severance apply. They can be unilateral (written notice/operating upon one’s own share) or mutual (agreement/conduct), or one of the other exceptions (homicide).
Q1. Alan and Bertha purchase Blackacre together as a married couple. Their relationship subsequently breaks down. Bertha, while away on holiday, posts a notice to Alan indicating that she wishes to “take my fair share of the property, 60%.” Alan does not read the notice as he is hospitalised for heart failure. He is given a terminal prognosis. When Bertha returns to Blackacre and learns of his hospitalisation, she destroys the notice. Alan never reads it. Upon Alan’s death, representatives of his estate, looking to settle his debts, learn of the notice.
Q2. Charlie and Delilah are joint tenants of Whiteacre. Delilah writes a will in which she attempts to bequeath Whiteacre “wholly and entirely” to her child, Eric. When Charlie learns of her attempts to dispose of the property he arranges for Delilah’s death. Delilah is killed by agents acting for Charlie. Eric wants to obtain the property.
Q3. Florence and Gertrude purchase Redacre together at law and in equity. They become estranged. Florence and Gertrude draw up lines throughout Redacre, and they each claim the areas within the lines as “theirs”, into which the other cannot enter. Gertrude then goes on to charge the estate to Homes Ltd, with the intent to purchase more property using her share. When Gertrude falls ill, Florence wants to know if she is liable for Gertrude’s charge.
Q4. Irene, Julian and Karen have purchased Greenacre together. Irene then informs Julian and Karen that she may want to leave the property. The three start discussing about how they would apportion their respective shares of the property. After Karen provides them both with a letter saying she intends to leave Greenacre “in the future”, there is no further discussion between them. Julian goes traveling, and sends a letter to Irene only saying that he intends to sever his interest. Karen never sees that notice or receives a notice from Julian. Irene, getting antsy about the situation, is deliberating on whether to ask the court for a determination.
A1. This is a reprisal of the situation in Kinch v Bullard. As you will recall, according to that case, a notice is immediate upon its provision, and is effectively irrevocable. So although Alan never reads the notice, severance occurred upon the notice being posted. As to the 60%, one can mention Stack v Dowden, given that the court will conduct an analysis of who is entitled to what share of the property.
A2. As we have seen, a joint tenancy and the concept of survivorship will usually frustrate efforts in a will to dispose of property in favour of the beneficiaries named there. However, because Charlie is criminally implicated in Delilah’s death, the court will look to prevent him from profiting from his criminal enterprise. Severance thus occurs and Delilah’s share passes to Eric.
A3. The two attempt to physically separate the property, however according to Greenfield v Greenfield this does not amount to severance. However, as per First National Securities Ltd v Hegerty, the charge means that Gertrude is operating upon her own share. This necessarily gives rise to severance.
A4. Following Harris v Goddard, we can discount two of the possibilities in this question immediately. Firstly, there are discussions to sever the interests, however because the discussions are inconclusive, there is no severance. Second, when Julian sends a written notice to Irene, he fails to send one to Karen. Therefore, the requirements for written notice are not satisfied because not all joint tenants are given notice. And third, because Karen writes to them saying she intends to leave “in the future” rather than immediately her notice is ineffective. However, Irene could yet succeed in severing the interest if she were to apply to court for a determination (Re Draper’s Conveyance). This is the course of action that is likeliest to succeed. Further, given the number of deliberations between them, this may amount to a course of dealing that is short of an agreement but indicates they have a shared mutual intention.
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