The Not Uncommon Issue of Converting Joint Tenancies into Tenancies in Common.

In the case earlier this year of Dunbabin and Others –v– Dunbabin, the court had to consider whether the joint tenancy of a property in Milton Keynes had been severed.  The property was unregistered land and had been conveyed to a married couple jointly.  Unfortunately, the conveyance was silent as to the basis upon which the property was held.  In other words, was it a joint tenancy such that on the death of the first spouse the survivor inherited automatically under ‘the right of survivorship’ or was it a tenancy in common so that each spouse was free by their Will to dispose of their own share.  There is a rebuttable presumption that if there are joint ‘legal’ owners, they also hold the beneficial interests as joint tenants.

In 2003, the couple had written “mirror Wills” under which the property was put on trust for the surviving spouse for life with the remainder then passing to such of the couples’ four sons as should survive them.  In 2008, they executed fresh Wills in slightly different terms.  The mother died in September 2016.  Thereafter, the father made a new Will giving 75% of the residue of his estate to one son with the balance being shared amongst the other three sons.  The father then died in April 2020.

Obviously, the question of whether on the death of the mother, the house passed automatically to the father to be dealt in accordance with the terms of his Will or her 50% share in the property passed under the terms of her Will was a highly significant one.  If her Will prevailed, then her half share would be divided four ways.  If her will was not effective, it would end up being dealt with in accordance with the father’s Will namely one son would get 75% and the other three would have to share the remaining 25%.

The court had to consider various ways in which the joint tenancy could have been severed including:

• A notice in writing under Section 36(2) of The Law of Property Act 1925
• A mutual agreement between the co-owners to achieve severance
• A course of dealing between the co-owners treating the beneficial joint tenancy as having been severed.

The Will draftsman recalled recommending to the couple that they should sever the joint tenancy and suggested that they sign a formal agreement to that effect. However, the couple wanted to avoid the cost of registering title to the property at the Land Registry, so he then suggested as an alternative that they both sign a notice of severance to be kept with the unregistered title deeds but regrettably after their deaths this could not be found.

The wording in the 2003 Wills referred to the property or “my share of any other property that becomes the main family home that my husband and I have agreed to owned (sic) together and in equal shares as tenants in common.”

The judge decided that the physical absence of the notice of severance was not fatal to the claim, that the joint tenancy had been severed concluding on the balance of probabilities that the couple had signed a notice of severance.

In terms of severance by agreement, the court decided that it was not necessary that such an agreement be in writing.  Amongst other things in the context of the two mirror Wills in which the couple had each sought to give away “my share” in the property, the judge decided that the couple had agreed at about the time of making the Wills to sever the beneficial joint tenancy.

Finally in terms of severance by course of conduct, the judge referred to “any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common”  and concluded that he was satisfied that there had been such a course of conduct (in particular the making of the mirror Wills) which showed that one party (indeed each party) had made clear to the other that the property should no longer be held jointly, but should be held as tenants in common.

This case reinforces the importance of it being clear with jointly owned property as to the precise basis upon which it is held.

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