#16147 - Concurrent Interests

Statute	Provision	Applications
LPA 1925 s 184	Where multiple joint tenants die in a single incident the oldest is presumed to have died first	Re Bate – Jenkins J held that this provision applies even where there is evidence that the two people died at the same time
LPA 1925 s 184		Hickman v Peacey – deceased persons were killed by a bomb, but HL held that the section still applied (Viscount Simon LC dissenting – a rule that where it is uncertain which horse passed the finish line first the prize goes to the younger horse doesn’t mean that in a dead-heat the prize can’t be shared)
LPA 1925 s 36(2)	Notice in writing is required to sever joint tenancies of legal estates vested in the joint tenants beneficially

Cases

Subject	Case	Held	Treatment
Words of severance rebut presumption of joint tenancy	Robertson v Fraser	Lord Hatherley LC: “anything which in the slightest degree indicates an intention to divide the property must be held to abrogate the idea of a joint tenancy, and to create a tenancy in common”. Words like “participate”, “amongst” and “respectively” indicate such intention.	Arguable that choice of words is likely random and not a sign of intention.
Equitable presumptions of tenancy in common	Malayan Credit v Jack Chia-MPH	Lord Brightman: where premises are held as joint tenancy at law for holders’ several individual business purposes, it can still be a tenancy in common in Equity (though it is not partnership property) – thus the three classes of Equitable exceptions are fluid	Lord Brightman placed much emphasis on the unequal contribution of both parties – would the outcome be different if it had been equal? (seems arbitrary to answer in the affirmative)
Methods of severing joint tenancies	Williams v Hensman	Page-Wood VC: three methods exist to sever joint tenancies: Act operating on severer’s share Mutual agreement Course of dealing suggesting of intention	Sir John Pennycuick in Burgess said that the importance of agreement is that it evinces the common intention of parties; it seems that it can be subsumed under the third head, although he just says that the third head is wider than the second. Lawton LJ says that these methods are still valid after 1925 because s36(2)’s reference to ‘other methods’ includes them
	Nielson-Jones v Fedden	Walton J: a unilateral declaration cannot sever because 1) it would eliminate the need to convey to trustees and 2) s36(2) would be pointless/restrictive. S36(2) only applies to real and not personal property – proceeds of sale cannot be severed by writing	Rejected by Burgess v Rawnsley and Harris v Goddard
	Burgess v Rawnsley	Denning: A unilateral declaration can sever as long as it is communicated to the other party. S36(2) applies to real and personal property because: (Denning) It would be absurd to create an anomaly (Pennycuick) The language of the statute suggests that the framers contemplated that writing was already sufficient to sever interests in personal property (Browne) The purpose of the provision was to declare a new method of severance, not distinguish between realty and personalty – but if the anomaly does exist, it should be corrected ASAP
	Harris v Goddard	Lawton LJ: the three methods in Williams v Hensman are still valid; notice by writing per s36(2) must evince present and not future intention to sever
	Gore and Snell v Carpenter	Negotiations are not the same as course of dealing – a course of dealing is where parties over the years treat the interest as tenancy in common and not joint
	Kinch v Bullard	Notice is ‘given’ for the purpose of S36(2) when it is delivered to the last known place of abode of the intended recipient (per S196) and it is unnecessary that he read/received it.

Articles

Author	Idea	Treatment
Thompson	Joint tenancies are often created in family homes because solicitors asked the parties whether they wanted the other to have the house if one died. Parties didn’t usually contemplate equal division of proceeds upon sale. This warrants abolishing the beneficial joint tenancy.
Pritchard	Many people are attracted by the idea of survivorship and they should be able to get it without having to draft a will – unsuccessful marriages shouldn’t dictate the law and aggrieved parties should be able to sever anyway

Successive interests don’t include leases because:
- Lessor doesn’t lose the fee simple absolute in possession and this interest is not postponed until lessee’s interest lapses
- (Most important) Successive interests are subject to statutory regulation allowing land to be sold free from these interests, and the value of leases requires land not to be sold free of them
Concurrent interests: joint tenancy and tenancy in common (eg. co-ownership of the family home – increasingly common)
Legal regulation
- Controversial because traditionally wealthy families owned land subject to complex settlements, but this is difficult for purchasers (especially if interests involve people unborn or children)
- Solution: overreaching
- 19C reforms made overreaching available in all situations involving successive interests (was controversial because land was still seen as the basis of power and wealth so families didn’t like it when their interests in land was converted to an interest in a fund)
- 1925 legislation introduced overreaching into concurrent interests to solve problems for buyers in case of tenancies in common: scheme dictates that legal title must be held by joint tenants so that a small and diminishing number of people can sell. Joint tenants hold land on trust for co-owners (equitable joint tenants or tenants in common) and have a power to sell, where they become trustees of sale
- Trust of sale was controversial because the beneficial interests were really in the proceeds of future sale rather than in land – particularly controversial for family homes.
- Trust for sale replaced by trust of land by the TLATA

Do we need both tenancy in common and joint tenancy?
- No
  - Problems arise in determining which type was created and whether there has been severance
  - Preference for joint tenancy introduced survivorship where it is not intended
  - Equitable joint tenancy is unnecessary:
    - No reason why a share under a tenancy in common shouldn’t be left by will
    - Survivorship is harmful when relationships break down
    - Legal complexity is expensive (litigation costs)
- Yes
  - Tenancy in common has to be retained (can’t insist on survivorship and unity of interest)
  - Legal joint tenancy is valuable:
    - Crucial to 1925 scheme for clarifying title
    - Sale is easier and less expensive
  - Equitable joint tenancy is preferred in family home cases, showing that survivorship is intended in most cases

	Joint tenancy	Tenancy in common
Distinctions	Each owns the whole rather than a share of it – Dixon J: “they are jointly seised for the whole estate they take in land and no one of them has a distinct or separate title” Thus upon death interest doesn’t pass to survivors because they already have an interest in the whole – but this is somewhat artificial because each joint tenant is entitled to a share of the income, and to a share of the interest upon severance, and no join tenant can enter into transactions binding the whole even though he is said to own the whole.	Each owns an undivided share (undivided because they don’t each own part of the land)
	Includes right of survivorship (when one joint tenant dies, survivors are entitled to property rather than it passing to heirs) – most important characteristic Difficulty: when a single incident kills multiple joint tenants, who died first? Law presumes that the oldest died first (arbitrary but certain)	Does not include right to survivorship
	Subject to the four unities	Only subject to the first unity (unity of possession)
	All shares must be of the same size and nature (unity of interest)	Shares can be of different sizes
	Obligations are shared – joint tenants of a lease are each liable for the entire rent to landlord	Obligations can be separate
	In the case of gifts in wills where a donee dies before testator – a gift in joint tenancy becomes a gift to survivors	Such a gift fails as to the portion gifted to the predecessing donee
Advantages	Survivorship is suitable for many relationships such as spouses in the ownership of family homes	Flexibility – shares can be whatever size and not subject to survivorship
Advantages	Better for purchasers – interests do not increase in number upon death of a joint tenant	Suitable for some relationships (eg. business partners) where survivorship would be inappropriate
When does it exist?	Presumed in common law whenever the four unities are satisfied subject to expressions of contrary intention (Thus joint tenancies will never be imposed if intention is otherwise, but will be if intentions are not clear)	Exists by default where a unity is absent (even where parties...

#16147 - Concurrent Interests - Land Law

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