Law of Real Property I

Concurrent Interests
Where 2 or more persons become entitled to possession of land simultaneously, they are said to hold
concurrent interests in the land, or to be co-owners.
In the modern law there are 2 types of co-ownership: -
1. Joint Tenancy (JT!
2. Tenancy in "ommon (T"!
Joint Tenancy (J/T)
JT occurs where land is con#eyed to 2 or more persons without $words of se#erance%, i.e.
without words to show that they are to ta&e separate and distinct shares.
The essence of JT is that from the outside there is one title and the 'oint tenants are collecti#ely
re(arded as a sin(le owner, but as between themsel#es they ha#e separate and e)ual ri(hts:
Panton v. Roulstone (1976) 24 WIR 462 per Wat&ins J*, in beneficial J/ eac! "oint tenant
!ol#s not!in$ b% !i&self but !ol#s t!e '!ole to$et!e( 'it! !is fello's.)
The intimate nature of 'oint tenancy is shown by its 2 principle features: -
1. +i(ht of ,ur#i#orship Ius *cc(escen#i
2. The - .nities / Title, Time, Interest, 0ossession
Right of Survivorship/ Ius Accresceni
1n the death of one 'oint tenant, his interest automatically accrues to the sur#i#in( 'oint tenants,
so that he has no interest to transfer #ia will or intestacy. This is the effect of the ma2im +totu&
tenet et ni!ill tenet,-
Pal&e( v. (easu(e( / 3ecause he did not ha#e any share of his own, on his death the estate is
si&.l%f(ee# f(o& .a(tici.ation b% !i&).
*c to 4e(arry 5 Wade / on t!e #eat! of one "oint tenant/ !is inte(est in t!e lan# .asses to t!e ot!e(
"oint tenants b% t!e (i$!t of su(vivo(s!i. ("us acc(escen#i). !is .(ocess continues until t!e(e is one
su(vivo(/ '!o t!en !ol#s t!e lan# as t!e sole o'ne(.)
*t "6, if there could be no ri(ht of sur#i#orship there could be no JT, e.(. a corporation could
not therefore be a 'oint tenant because it could ne#er die. 7e, it is important to note the effect of
the 3odies "orporate (JT! *ct 1899 / ban&s and other corporations now act as trustees.
Where the circumstances of the death of the 'oint tenants ma&e it difficult to determine who died
first, e.(. where all the 'oint tenants die in an accident, at "6 there could no ri(ht of
sur#i#orship: the respecti#e heirs of the deceased 'oint tenants would inherit the estate as 'oint
tenants / 0(a#s!a' v. oul&in.
7e, in some 'urisdictions ,tatute resol#es the )uestion as to who is deemed the sur#i#or / 60*
192; / ,uccession *ct 1981 s.2 (2! Trinidad 5 Toba(o / ,uccession *ct 198; 3%dos "ap. 2<9
s.1=; / pro#ides that, in t!e event of unce(taint% as to '!o .(e#ecease# t!e ot!e(/ t!e %oun$e( is
#ee&e# to !ave su(vive# t!e el#e( e1ce.t '!e(e t!e 2ou(t #eci#es ot!e('ise, tfore the JT
continues with the heirs of the youn(er person.
* 'oint tenant can a#oid the incidence of ius acc(escen#i by destroyin( the JT and con#ertin( it
into a Tenancy in "ommon (T"!, i.e. by disposin( of his share in the 'oint estate in an inte(
vivos transaction. Ius acc(escen#i does not apply to a T".
The ! "nities
The - .nities of JT are: - possession, interest, title and time.
The - .nities must be present for a JT to e2ist, thus anythin( which accords a distincti#e and
e2clusi#e claim to property destroys the JT and ma&es it a T".
.nity of 0ossession
- common to all forms of co-ownership:
- each 'oint tenant is entitled to physical possession of the whole land:
- no tenant can point to any part of the land as his own, to the e2clusion of the others:
- each tenant is entitled to en'oy the fruits of possession, such as rents and other profits.
.nity of Interest
- each 'oint tenant%s interest in the property must be of the same e2tent, nature and
duration, e.(. a freeholder and a leaseholder cannot be 'oint tenants:
- the unity of interest re)uires that any transaction in#ol#in( a <
rd
party affectin( the
estate can only be effected if all the 'oint tenants concur and e2ecute it:
3in$! v. 4o(ti&e( (1967) 15 WIR 66 / the "t. *pp. >uyana held by a ma'ority that,
since the intention was to sell and con#ey the whole estate, the contract was not
effecti#e as it was not si(ned by the sister (the deceased co-tenant!.
Jose.! v. Jose.! (1961) 7 WIR 78 / in >uyana, a co-tenant whose interest has not
been )uantified is entitled to oppose transport of a property of which he is a 'oint
tenant or tenant in common whether in e)uity or at law.
.nity of Title
- each 'oint tenant%s interest must be deri#ed from the same instrument, i.e. the same
con#eyance or will, or where they claim title by *d#erse 0ossession, they must ha#e
ta&en possession simultaneously.
.nity of Time
- the interest of each tenant must #est at the same time:
- .nity of Time differs from .nity of Title, for the parties may deri#e their interest
from the same document but ha#e their respecti#e estates #ested in interest at
different dates:
- The e2ception to this re)uirement is in respect to Wills and Trusts, e.(. if there is a
Trust for the benefit of se#eral persons, and some are not yet born or ascertained, the
e2istin( beneficiaries will hold 'ointly with the others when they are born or
ascertained / 4utton,s 2ase
- * con#eyance by a bachelor to the use of himself and the wife he mi(ht marry will
operate to create a JT on his marria(e.
Tenancy in Co##on (T/C)
T" differs si(nificantly from JT in that: -
1. There is no +i(ht of ,ur#i#orship
- 1n the death of a tenant in common his estate passes to his de#isee or heir. It does
not mer(e into and enlar(e the estate of the sur#i#in( co-tenant.
2. The tenants hold in undi#ided shares
- ?ach tenant has a distinct fi2ed share in the property, but the property is treated as a
sin(le unit.
- The .nity of 0ossession @octrine e2plains the fact that thou(h the share of a tenant in
common is precisely allocated, he cannot lay an e2clusi#e claim to any portion of the
property.
- The share of a tenant in common is so distinct and reco(niAed that on his death it
cannot be altered: it is inheritable and de#isable.
- 1ther than .nity of 0ossession the other < unities need not be present for a T".
$ethos of Creation
Joint Tenancy
JT is created where land is (ranted to 2 or more persons with: -
(a! Words of se#erance, e.(. in e9ual s!a(es: e9uall%: to be #ivi#e# a&on$st: s!a(es
(es.ectivel%.
2!(istian v. 4itc!ell :ee (1969) 17 WIR 752 / the wordin( of the de#isee presented a
problem of interpretation. 1n the death of *deline ?dwards, the administrator of her
estate contended that the words t!e s!a(es (es.ectivel%) referred to the separate and
distinct shares of ?dwards (deceased! and 4itchell-6ee, and tfore, the (rant created a
T" with the result that, on the death of ?dwards, her share passed to her estate. This
ar(ument was re'ected by the trial 'ud(e, who considered the word s!a(e as indicatin(
the property de#ised and not a part of it. The "t. *pp. 1#erruled the decision on the
(round that, t!e 'o(#s bea( t!ei( usual connotation of #ivision an# #ist(ibution.
!e% in#icate t!e intention of t!e $(anto( 'as t!at eac! of !is #au$!te(s 'as to !ave
a s!a(e in t!e .(o.e(ties conve%e#/ an# t!at t!e inte(ests conve%e# to t!e& in t!e
.(e&ises 'e(e to be ta;en b% t!e& se.a(atel%< in effect/ t!at t!e% 'e(e to !ol# as
tenants in co&&on.)
(b! where e)uity treats a JT at law as a T".
(c! Where a 'oint tenant se#ers his JT by alienation of a (reater interest, a(reement or
course of dealin( / Willia&s v. =ens&an.
(d! 1ne of the - .nities is missin(.
(e! Where e)uity presumes a T", e)uity will pre#ail to impose a T" on the tenants who
will retain the le(al title as 'oint tenants, but hold the le(al JT sub'ect to their
interests, which will be held under a T".
Tenancy in Co##on
T" arises where a JT does not e2ist for one or more of the followin( reasons: -
(a! There are words of se#erance , e.(. where the property is con#eyed or de#ised to
s!a(e an# s!a(e ali;e)
(b! *ny one of the .nities is missin(:
(c! Where e)uity presumes a T":
(d! Where ,tatute presumes T" , e.(. *nti(ua, +eal 0roperty 1rdinance 18B<, "ap. 289
s.1; / @ominica +eal 0roperty *ct, 18B< "ap. 219 s.1-.
%&uita'le Presu#ption of Tenancy in Co##on
- Whereas the "6 fa#ored JT, e)uity has always leaned in fa#or of T", as e)uity
preferred the certainty and e)uality of a T" to the element of chance, which the ius
acc(escen#i of a JT introduced.
?)uity%s abhorrence for JT is manifested in the followin( situations where e)uity would treat
persons who are 'oint tenants at law as tenants in common of the beneficial interest: -
1. Pu(c!ase &one% .(ovi#e# in une9ual s!a(es
-where 2 or more persons to(ether purchase land in une)ual shares a T" of the property is
presumed in e)uity, and the purchasers ta&e shares proportionate to the amounts ad#anced by
each / :a;e v. >ibson (1729) 21 ?R 1562
-on the death of one of the persons, the sur#i#or will become entitled at la' to the whole
property, but in the eyes of e)uity he will hold the deceased share in trust for the deceased
personal representati#es.
0er +obinson 0 in Panton v. Roulstone, It is '!e(e &one% is subsc(ibe# in une9ual s!a(es/
t!at e9uit% ten#s to infe( a /2.)
-where there are e)ual contributions the purchasers would hold the property as 'oint tenants.
.pon the death of one of the parties the sur#i#or would become entitled to the whole
property beneficially, both at law and e)uity, for where purchase money is ad#anced e)ually,
e)uity will presume that the parties intended the ius acc(escen#i to apply.
2. :oan on 4o(t$a$e
-Where 2 or more persons ad#ance money on mort(a(e, whether in e)ual or une)ual shares,
e)uity presumes a T".
4o(le% v. 0i(# (1798) 7 @es. 628 / If 2 .eo.le "oin in len#in$ &one% u.on a &o(t$a$e/
e9uit% sa%s it coul# not be t!e intention t!at t!e inte(est in t!at s!oul# su(vive. !ou$! t!e%
ta;e a "oint secu(it%/ eac! &eans to len# !is o'n an# ta;e bac; !is o'n.)
- In the e#ent of the death of one of the mort(a(ees, the sur#i#or becomes a trustee for the
0ers. +ep of the deceased mort(a(ee to the e2tent of the deceased mort(a(ee%s share of the
loan.
-This rule is unaffected by the practice of insertin( a "oint account clause in mort(a(es where
2 or more persons lend money.
-The Joint *ccount "lause is merely a con#eyancin( de#ice, which affects the position as
between the mort(a(ees and mort(a(or: it does not affect the presumption of a T" as
between the mort(a(es inte( se.
7. Pa(tne(s!i. *ssets
-Ius acc(escen#i inte( &e(cato(es locu& non !abet / the ri(ht of sur#i#orship has no place
amon( merchants.
-Where business partners purchase land as part of their partnership assets they are presumed
to hold as beneficial tenants in common.
- *lthou(h the le(al estate may be held on a JT, in e)uity the sur#i#in( partners hold a
deceased partners share on Trust for his estate:
:a;e v. 2(a##oc; (1772) 24 ?R 1511 / Where ; persons 'oined in buyin( some waterlo((ed
land with a #iew to its impro#ement by draina(e, it was held that they must be presumed to
ha#e ac)uired the land as tenants in common, as the ri(ht of sur#i#orship was incompatible
with a commercial underta&in(.
-The presumption e2tends to where there is no formal partnership a(reement between the
parties:
Panton v. Roulstone (1976) 24 WIR 462 / Two ladies had purchased C parcels of land, ta&in(
con#eyances in both their names. There was no e#idence as to the e2tent of their respecti#e
contributions to the purchase price, but a ma'ority of the Jamaican "t. *pp. inferred that the
women were business associates and were tfore tenants in common of the beneficial interest,
and on the death of one, the property did not de#ol#e on the sur#i#or under the ius
acc(escen#i. In this case, since the parties had ac)uired the properties as 'oint tenants, and in
the absence of any e#idence that they had used the land in the way of trade or business,
+obinson 0 was unable to a(ree that they held the beneficial interests as tenants in common.
Severance of Joint Tenancy
,e#erance includes any act, which has the effect of destroyin( the JT, and this may in#ol#e
partition.
-It is the process whereby a JT is con#erted into a T": a#oidance of the incident of
sur#i#orship.
-Where .nity of 0ossession is destroyed there will be partition, whereby the parties will ta&e
their indi#idual shares and there will be no co-ownership.
-* 'oint tenant cannot ha#e a separate and distinct share in the land which is co-owned. 7e is,
he, potentially entitled to an e)ual share in the property with his co-owners.
-In the leadin( case of Willia&s v. =ens&an 0a(e-Wood D" identified < types of
circumstances which will amount to se#erance: -
1. an act of a 'oint tenant +o.e(atin$ u.on !is o'n s!a(e,:
2. mutual a(reement:
<. course of dealin(.
1.! *ct of a 'oint tenant operatin( under his own share
-In order to brin( about se#erance, the act of the 'oint tenant must be of a final and
irre#ocable character, which effecti#ely estops him from claimin( any interest in the sub'ect
matter of the property / Re Wil;s A1891B 7 2!. 69
(a! *lienation
-Total or partial alienation of his interest by a 'oint tenant is the clearest type of act
within this head.
-Where a 'oint tenant alienates his interest inte( vivos, his JT is se#ered and the
transferee ta&es as a tenant in common, since he has no .nity of Title with the other
'oint tenants. ()*) the other 'oint tenants remain 'oint tenants, i.e. se#erance does not
affect them.
-,e#erance by alienation also occurs where a 'oint tenant: -
(a! mort(a(es his interest / Co(; v. 3tone.
(b! becomes ban&rupt / Re Rus!ton.
-?)uity re(ards that as done which ou(ht to be done, thus a JT of an e)uitable
interest will be se#ered by an enforceable contract to alienate the interest / 0u($ess v.
Ra'nsle%.
>a&ble v. =an;le (1995) 27 J:R 116 / 0 and her husband had been re(istered as 'oint proprietors of
certain land. *fter her husband%s death 0 claimed to be solely entitled to the property by #irtue of
the ius acc(escen#i. 7owe#er, durin( 0%s husband lifetime he had purported to con#ey the land to
the @ by a deed of (ift. Issue / @id the deed of (ift effect se#erance of the JTE 7eld: - The @> had
effected se#erance, notwithstandin( that the deed was not in the form stipulated in the +e(istration
of Titles *ct. *c to Wolfe J, the @> was an act which came within the ambit of the first < methods
of se#erance mentioned by 0a(e-Wood D" in Willia&s v. =ens&an / an act of a "oint tenant
o.e(atin$ un#e( !is o'n s!a(e.
(b! 4utual *(reement
*n a(reement entered into by 'oint tenants to hold as tenants in common can ha#e the effect of
se#erance.
-Where the conduct of the 'oint tenants shows a mutual intention to destroy the JT, the "ourts will
(i#e effect to that intention: -
>oul# v. De&. / * letter from * to 3, in which * en(a(es to secure for 3%s family a moiety of a
fund, in which * and 3 are interested in as 'oint tenants, is a se#erance of the JT. 0er 3rou(ham 6"
relyin( on E(e'en v. Rolfe, !is s!o's t!at t!e ba(e a$(ee&ent !as t!e fo(ce of actual seve(ance
an# seve(ance e1ists even '!e(e t!e a$(ee&ent is %et to be .e(fo(&e#.)
- * leadin( e2ample of se#erance of a JT by mutual a(reement is the case of:
0u($ess v. Ra'nlse% A1976B 7 *?R 142 / *n elderly couple, 7 and +, 'oined in the purchase of a
house, ta&in( a con#eyance of the le(al title upon trust for sale for themsel#es as beneficial 'oint
tenants, each pro#idin( half the purchase price. When the relationship bro&e down, 7 ne(otiated
with + to buy her out, and there was e#idence that + had orally a(reed to sell her interest to 7 for a
specified price. + later repudiated the a(reement and demanded a hi(her price, but 7 died bfore the
ne(otiations could continue. +%L,: - 7 had effecti#ely se#ered the JT before his death and his
estate was accordin(ly entitled to a F share in the proceeds of sale of the property.
.nilateral @eclaration
It is somewhat unclear whether .nilateral @eclaration by one of the parties is enou(h for se#erance.
The authorities are unsettled on this issue.
1ld "6 position: -
-4ere declaration is not effecti#e to se#er a le(al JT / 6ord 7ardwic&e in Pat(ic!e v. Po'let (1745)
-0er 6ord 7arlow in Pe(;ins v. 0a%nton, I #o not ;no' t!at a #e&an# 'ill seve( a J/.)
-Re Wil;s/ 2!il# v. 0ul&e( / It was held that proceedin(s for the payment of a share in a fund would
not amount to se#erance if the proceedin(s did not end in an order of the "ourt, which could not be
obtained before the death of the petitioner.
-FielsonGJones v. Ee##en A1974B 7 *?R 78 / * wife who had a JT with her husband in their
matrimonial home si(ned a document authoriAin( the husband to sell the home and employ the
proceeds to his new home. 7?6@: - The memorandum could not be read as a se#erance of the 'oint
beneficial interest, which could not be se#ered by a unilateral declaration of intention to se#er: per
Walton J, a &e(e unilate(al #ecla(ation #oes not s!atte( an% of t!e essential Hnities.)
"ontrast "ases
=a';esle% v. 4a% A1966B 1 I0 754 / * letter from a 'oint tenant to a co-tenant re)uestin( that his
di#idends be paid into a particular account constituted se#erance.
Re J(a.e(,s 2onve%ance A1969B 1 2!. 486 / The institution of le(al proceedin(s for a determination
of )uestion of between husband and wife and a prayer for an order that the matrimonial property be
sold and the proceeds distributed in accordance with their respecti#e interests, supported by an
affida#it in which the wife claimed to entitled to a F share, could effect se#erance. 0er 0lowman J,
* #ecision b% one of a nu&be( of "oint tenants of !is intention to seve( o.e(ates as a seve(ance.)
0u($ess v. Ra'nsle% A1976B 1 2!. 429 / The a(reement was sufficient to se#er the beneficial JT,
e#en thou(h it was not specifically enforceable.
There are statements in the #arious 'ud(ments which tend to support =a';esle% v. 4a% and Re
J(a.e(,s 2onve%ance as establishin( that a unilateral declaration is sufficient to se#er a JT. 6ord
@ennin( and 6ord 3rown both subscribe to the #iew that a unilateral declaration is sufficient to
se#er a JT. 7owe#er, 6ord 0ennycuic& did not accept such a proposition.
1n the balance of the conflictin( authorities, it can be (leaned that 6ord @ennin(%s #iew is the
preferred #iew, and this deri#es support from ,nell%s 0rinciples of ?)uity:
->ibson v. Walton (1992) 28 0a(b. :R 117 and 3tua(t v. Di(ton (1994) 0a(b. :R / a 'oint tenant%s
filin( of a writ and see&in( an order of sale of the property and e)ual distribution of the proceeds of
sale, is sufficient for se#erance.
(c! "ourse of @ealin(
-,e#erance under this head does not re)uire any e2press act of se#erance, nor any a(reement or
declaration of trust.
-*ll that is re)uired is +a consensus b/' t!e "oint tenants/ a(isin$ in t!e cou(se of #ealin$ 'it! t!e
coGo'ne# .(o.e(t%/ '!ic! effectivel% e1clu#es t!e futu(e o.e(ation of a (i$!t of su(vivo(s!i., /
>ray, ?lements of 6and 6aw.
1ther 4ethods of ,e#erance
(d! *c)uisition of >reater Interest
-Where a 'oint tenant subse)uently ac)uires an additional estate in the land, the unity of
interest bw himself and the other 'oint tenants is destroyed and the JT is se#ered.
Wiscot,s 2ase (1699) 76 ?R 666
(e! 3y 7omicide
-Where a 'oint tenant &ills a co-tenant he is denied the ri(ht of sur#i#orship. ?)uity will not
allow him to benefit from his own crime throu(h the Joct(ine of Ius *cc(escen#i.
-*t law the ius acc(escen#i will allow him to ha#e the whole estate, but in e)uity he would
hold the le(al title sub'ect to the beneficial interest of himself and the estate of his #ictim.
(ote:- In 3eliAe and the .G there is no ,e#erance as Tenants-In-"ommon cannot e2ist as a le(al
estate.
Partition
-.nder the "6 it is permissible for all the co-owners of full a(e to partition the land if they all a(ree.
-The .nity of 0ossession will be destroyed and each of them will own his allotted piece e2clusi#ely.
-0artition is only possible where they all a(ree, and the a(reement is sealed.
Hote: - The 0artition *cts 1;<9 and 1;-= (.G! conferred a statutory ri(ht to brin( an action to
compel partition by means of a writ of partition.
-The *ct has been adopted by most of the "aribbean territories: where there is no local le(islation
conferrin( 'urisdiction for partition, the *cts can be in#o&ed as statutes of (eneral application. The
effect is that each co-owner will obtain a precise share out of the proceeds of sale.