Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

treated as trusts of land, without conversion13 but with the automatic implication of a power to postpone sale.14

A trust of land is implied by statute if there is no express trust,15 on all beneficial coownerships created since 1996, and statutory trusts existing at the end of 1996 are converted to become implied trusts of land. Trusts of land allow the trustees either to hold the land or to dispose of it by exercising the power of sale,16 but the very existence of the trust in simple co-ownership of a family home remains remote from reality.17 A trust of land is imposed however a beneficial co-ownership arises. Thus:

transfer to A and B as joint tenants.18 beneficial joint tenancy, later severed;19 transfer to A and B as tenants in common;20 gift by will to A and B as tenants in common;21

co-ownership between A and B (as a sub-trustee or personal representative for C);22 transfer to A who holds for A and B by contribution either as joint tenants23 or as tenants in common.24

D. FORMS OF BENEFICIAL CO-OWNERSHIP

1.“Tenancies”

[16.04] Beneficial co-ownership takes one of two basic forms – joint tenancy or tenancy in common. The use of the word “tenancy” here is an inappropriate throwback to the feudal origin of freehold ownership, since the interest owned jointly could be a freehold, a leasehold, a short tenancy,25 or a life interest.26

2.Effect of death

[16.05] The two forms of holding are differentiated mainly by the effect of death. Joint tenancy carries a right of survivorship, meaning that the remaining joint tenants take the property on the death of one of them. The property never falls into the estate

13S 3.

14S 4(1).

15Under pre-1997 law it was never quite clear whether the express or the statutory trust for sale prevailed: P Sparkes NLL (1st ed), 298.

16Notting Hill HT v. Brackley [2001] EWCA Civ 601, [2001] 3 EGLR 11, [23], Peter Gibson LJ.

17Burton v. Camden LBC [2000] 2 AC 399, 404H, Lord Nicholls.

18LPA 1925 s 1; TLATA 1996 sch 2 para 4.

19LPA 1925 s 36(2); Bernard v. Josephs [1982] Ch 391, CA.

20LPA 1925 ss 34 (2); TLATA 1996 sch 2 para 3.

21LPA 1925 s 34(3).

22TLATA 1996 sch 2 para 3(4). These parties cannot claim occupation rights: s 22(2).

23TLATA 1996 s 1(2)(a).

24TLATA 1996 s 1(2)(a); SLA 1925 s 36(4); Bull v. Bull [1955] 1 QB 234, 237, Denning LJ; Williams & Glyn’s Bank v. Boland [1981] AC 487, 503D, Lord Wilberforce, 510G, Lord Scarman; City of London BS v. Flegg [1988] AC 54, HL; Hammersmith & Fulham LBC v. Monk [1992] 1 AC 478, 493B–E, Lord BrowneWilkinson.

25See below [25.16].

26Beneficial co-ownership of interests under trusts of land is discussed below [18.09].

of the deceased joint tenant, so a gift by will is ineffective, and his next of kin have no claim on his intestacy. Land held by A, B and C as joint tenants passes, on C’s death, to A and B as joint tenants. On B’s death it will pass to A alone.27

3.Joint tenancy

[16.06] Wharton28 defined survivorship29 as the concentration of property from more to fewer by the accession of parts belonging to those that die to the survivors, until it passes to a single hand and the joint tenancy ceases. Death of a joint tenant has the same effect in equity as at law.30 During the joint lives the form of co-ownership is irrelevant,31 since a beneficial joint tenancy can always be converted into a tenancy in common by severance, but leaving the tenancy unsevered during one’s lifetime is an agreement to submit to the chance of survivorship.32 This is so even if a deceased joint tenant left a will: this has no effect on beneficial entitlement in the absence of a severance. A joint tenancy creates a sort of tontine,33 in other words a gamble on the life of the survivor, so that the longest survivor scoops the pool. Equity is maintained by the requirement of initial unity of interest which ensures that the stakes are equal.34 The gamble between a company and an individual was previously thought to be unequal, but statute now allows corporate beneficiaries to be joint tenants with individuals.35

Joint tenancy is a very suitable means for a couple to hold a matrimonial or family home, since if one of them dies, he will wish it to pass to the other and vice versa.36 Simple estates can pass without the need for any grant of administration. Severance is essential if the couple fall out, and for business partnerships and house sharing.37 Mark Thompson38 has suggested that abolition of beneficial joint tenancy would simplify title and avoid the problems which are caused by survivorship after a relationship turns sour. But many people are attracted to the simplicity of survivorship which eases devolution of title on death. After all a majority of us still enjoy happy relationships.39

27Littleton’s Tenures, [280]; Farah v. Moody [1998] 1 EGCS 1, CA.

28Law Lexicon (11th ed, 1911), 471; Blackstone’s Commentaries vol 2, 179–180; Samme’s case (1609) 13 Co Rep 54, 77 ER 1464; Goddard v. Lewis (1909) 101 LT 528; Cunningham-Reid v. Public Trustee [1944] KB 602; Jones v. Jones [1972] 1 WLR 1269.

29In Latin, a ius accrescendi.

30Aston v. Smallman (1706) 2 Vern 556, 23 ER 960, Cowper LK; R v. Williams (1735) Bunb 342, 145 ER

31Re Rushton [1972] Ch 197, 202H–203A, Goff J.

32Staples v. Maurice (1774) 4 Bro Parl Cas 580, 2 ER 395, HL.

33Dealex Properties v. Brooks [1966] 1 QB 542, 551A, Harman LJ; [1993] Conv 446, 447–448.

34Staples v. Maurice (1774) 4 Bro Parl Cas 580, 2 ER 395, HL.

35Bodies Corporate (Joint Tenancy) Act 1899 s 1(1); on dissolution the property will devolve on the other joint tenants.

36Bedson v. Bedson [1965] 2 QB 666, 675, 675.

37D Green [1990] 4 LSG 23; M Wilkie [1991] 2 LSG 23; J Leigh [1990] 14 LSG 31 (tenancy in common between cohabitees).

38[1987] Conv 29; S Bandali (1977) 41 Conv (NS) 243.

39AM Prichard [1989] Conv 273; [1987] Conv 275.

4.Tenancy in common

[16.07] A tenancy in common is used where it is desired to give a notional share in the property. When a tenant in common dies, this beneficial40 share passes to his estate, so that his personal representatives can pass it on to the beneficiary named in his will or to the next of kin who take on his intestacy. Thus, if41

(1)land is held on trust for 1/4 to A and 3/4 to B as tenants in common;

(2)A dies intestate, leaving X and Y as his next of kin;

(3)then on trust for 1/8 to X, 1/8 to Y and 3/4 to B as beneficial tenants in common.

One divorce court, intending to pass the husband’s beneficial interest in the matrimonial home to his wife, ordered the variation of a beneficial tenancy in common as if the husband were dead, but the family lawyers had misunderstood a most basic tenet of property law: the husband’s share in a tenancy in common did not pass by survivorship.42

Beneficial tenancy in common is appropriate for holding property where the parties are at arm’s length, since each undivided share is held by each tenant in common on his own account.43 On death, it passes first to the personal representatives and then to the beneficiary named in the will of the deceased tenant in common or for his next of kin in the event of an intestacy.44

5.Custom made co-ownerships

[16.08] Apart from joint tenancy and tenancy in common, other forms of equitable co-ownership are possible by express limitation. There is no reason why parties cannot tailor their own forms of co-ownership by express limitations, mixing up elements of the beneficial joint tenancy and the tenancy in common. Co-owners could hold in unequal shares but with the benefit of survivorship.45 A joint tenancy could be mixed with a tenancy in common where two couples buy a house, each couple being joint tenants, but with a tenancy in common between the two couples. Beneficial joint tenancy and tenancy in common are merely convenient shorthands to describe the most common forms of beneficial arrangement.

40A legal tenancy in common cannot exist in land: LPA 1925 s 34, as amended by TLATA 1996 sch 2 para 3.

41McGrath v. Wallis [1995] 2 FLR 114, CA.

42Jones v. Jones [1972] 1 WLR 1269, CA.

43Blackstone’s Commentaries vol 2, 173; Littleton Tenures, [292].

44McGrath v. Wallis [1995] 2 FLR 114, CA.

45Haddelsey v. Adams (1856) 22 Beav 266, 52 ER 1110; Megarry & Wade, (6th ed), [9.011]; Taafe v. Conmee (1862) 10 HLC 64, 11 ER 949; Doe d Borwell v. Abey (1813) 1 M & S 428, 105 ER 160. The 1925 legislation does not prohibit such forms of trust, despite Cowcher v. Cowcher [1972] 1 WLR 425, 430H.

E. SURVIVORSHIP

1.Contemporaneous deaths

[16.09] Deaths in quick succession give rise to difficulty because one needs to establish the correct sequence in which they have occurred in order to apply survivorship correctly. Floods and shipwrecks were the old hazards, now joined by car crashes, plane disasters and bombings. Section 184 of the Law of Property Act 192546 presumes that deaths occur in the order of seniority if the sequence of deaths is uncertain, so that a younger joint tenant is deemed to have survived the older.47 The section applies where persons “have died in circumstances rendering it uncertain which of them survived the other or others”, including deaths in an unknown sequence and also instantaneous deaths. Hickman v. Peacey illustrates this last point, by a bare majority of the Lords after five people had been killed when a bomb demolished their house in Chelsea at the height of the Battle of Britain.48 The estate of the youngest joint tenant took all. The statutory presumption can be excluded by definite evidence of the actual sequence of deaths.49 It may be fairer in a case of “commorientes” to pass the land equally to the estate of all deceased joint tenants.50

2.Severance by killing

[16.10] A person convicted of murder cannot inherit any property from his victim and so cannot take joint property by survivorship,51 at least beneficially.52 Relief against forfeiture is not available to a murderer.53

The bar on beneficial survivorship applies to any unlawful killing, so conviction of manslaughter will usually cause a forfeiture. Re K54 concerned a wife subjected to repeated physical attacks by her husband, a retired Naval Commander leading her eventually to shoot him. It was not a serious case of homicide: the wife’s sentence for manslaughter was two years’ probation. The act of killing was held to preclude survivorship to his beneficial interest in the matrimonial home, the beneficial joint

46Pre-1926 law was based on the need to prove a case: Hickman v. Peacey [1945] AC 304, 321, Lord Macmillan; Wing v. Angrave (1860) 8 HLC 183, 11 ER 397; Re Phené’s T (1870) LR 5 Ch App 139; Re Aldersey [1905] 2 Ch 181; Re Lindop [1942] Ch 377.

47The rule does not operate on intestacy between a person and his or her spouse: AEA 1925 s 46(3). Otherwise it a married couple were killed together in a crash the family of whichever spouse happened to be younger would inherit all excluding completely the family of the elder spouse.

48[1945] AC 304, 337 Lord Porter, 325, Lord Macmillan, 343, Lord Simonds.

49Re Bate [1947] 2 All ER 418; RE Megarry (1947) 63 LQR 423; Re Rowland [1963] Ch 1, CA; Re Pringle [1946] Ch 124.

50Re Grosvenor [1944] Ch 138, CA; Hickman, Lords Simon & Wright; Uniform Simultaneous Deaths Act of United States; Grays’ Elements (3rd ed), 826.

51Davitt v. Titcumb [1990] Ch 110 Scott J; JE Martin [1991] Conv 50; JB Ames, Lectures on Legal History (Harvard, Cambridge, Massachussets, 1931), 310; TG Youdan (1973) 89 LQR 235; Re Crippen [1911] P 108, 112, Evans P. In old times there was an escheat to the Crown: Dunbar v. Plant [1998] Ch 412, [1998] Ch 412, 429, Phillips LJ.

52Trusteeship can pass: Re K [1985] Ch 85, 100F–H, Vinelott J.

53Forfeiture Act 1982 s 5.

54[1986] Ch 180, CA; Re Dellow’s WT [1964] 1 WLR 451.

tenancy was severed,55 and his share was forfeit to the Crown,56 though she obtained relief as described below. Manslaughter arising from negligence will not occasion forfeiture,57 but any deliberate and intentional crime will prevent survivorship.58 In Dunbar v. Plant59 a woman was convicted of assisting her fiancé in a suicide pact, and, although she was not prosecuted for it, the offence occasioned a forfeiture and loss of his share of the house and insurance money. The availability of relief makes it unnecessary to limit forfeiture to cases of intentional violence.60

Following a conviction for manslaughter (as opposed to murder), it is open to the court to grant relief from forfeiture.61 Relief is discretionary: the court should consider whether justice requires the rule to be modified, balancing the conduct of the offender and of the deceased and taking into account other circumstances.62 Relief restores the beneficial interest, but cannot be granted after another person has acquired an interest.63 In Re K, the killing followed provocation, and was at the bottom of the range of manslaughter cases in terms of seriousness,64 so the Naval Commander’s battered wife did take the entire interest in the matrimonial home. Relief was also allowed by a majority in Dunbar v. Plant65 to the woman who survived participation in a suicide pact. In Re S66 the children were allowed to benefit from an endowment policy held on the couple’s house, rather than the wife who had been convicted of her husband’s manslaughter.

3.Claim for family provision

[16.11] Family and dependants of a deceased person may claim under the Inheritance (Provision for Family and Dependants) Act 1975, which prevents a person cutting a dependant out of his will without reasonable cause. Reasonable provision can be sought from his estate, including any interest as a beneficial joint tenant which has passed by survivorship on his death. In such circumstances, a successful claim for family provision causes a severance.

55Re Giles [1972] Ch 544, Pennycuick V-C; (1972) 88 LQR 12; Re S [1996] 1 FLR 910.

56The killer is not deemed to be dead for the purposes of a condition in a will: Jones v. Midland Bank Trust Co [1997] 3 FCR 697, CA.

57Ex p Connor [1981] QB 758.

58Gray v. Barr [1970] 2 QB 626, 640, Geoffrey Lane J; on appeal [1971] 2 QB 554, CA; Re Royse [1985] Fam 22, CA; NS Price (1985) 48 MLR 723; Jones v. Roberts [1995] 2 FLR 422.

59[1998] Ch 412, CA; MP Thompson [1998] Conv 45.

60Re H [1990] 1 FLR 441, Peter Gibson J; JE Martin [1991] Conv 48.

61Forfeiture Act 1982 s 1; PH Kenny (1983) 46 MLR 96; SM Cretney (1980) 10 OJLS 289; Ho Young v. Bess [1995] 1 WLR 350, PC; a claim for relief must be brought within 3 months of the death.

62S 2(2). The test is not what is a fair between the parties to the litigation: Dunbar v. Plant [1998] Ch 412, 438F, Phillips LJ.

63S 2(7); Re K [1986] Ch 180, CA.

64[1986] Ch 180, 193–194.

65[1998] Ch 412, CA; MP Thompson [1998] Conv 45; S Bridge [1998] CLJ 31.

66[1996] 1 FLR 910.

F. EXPRESS CO-OWNERSHIP

1.Formality requirement

[16.12] Express trusts require formal declaration in writing. Section 53(1)(b) of the Law of Property Act 1925 provides that:

“a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.”67

A later memorandum suffices.68 It must prove both the existence of a trust, and details of its precise terms.69 Writing provides solid proof of the existence of the trust, and justifies proprietary enforcement outside the confines of the immediate parties.

An express oral trust may be enforced in exceptional cases because it is fraudulent to rely on the formality requirement.70

2.Need for formal declaration on joint purchase

[16.13] When land is passed to joint buyers, they must declare the beneficial capacity in which they are to hold.71 It may be negligent to omit this. No presumption of beneficial entitlement arises from a transfer of land to two or more joint legal owners that each is to have a beneficial interest,72 even though it is likely that they intend to share equally.

Who is able to declare the trust?73 If a seller transfers land to A and B, safety suggests that the declaration must be signed by A and B.74 However in several cases75 the declaration has been valid even though only the seller signed. It has been assumed that it has been inserted at the request of the buyers, unless a case for rectification is made out.

The declaration must relate to beneficial ownership. Land registry transfer forms have given most difficulty. Early forms for transfers to joint proprietors did not provide for execution by the buyers, so trusts may not have been validly declared,76 but in 1974 the form was amended to provide for execution by the buyers and to include

67Megarry & Wade (6th ed), [10.039–10.045]; DC Wilde “Formalities for Declaring Trusts of Land” ch 10 in Jackson and Wilde; the Law Com will review the law: Law Com 268 (2001), [5.9]. Land is widely defined by LPA 1925 s 205(1)(ix).

68Forster v. Hale (1798) 3 Ves 696, 707, 30 ER 1226, Arden MR; Gardner v. Rowe (1828) 5 Russ 258, 38 ER 1024.

69Smith v. Matthews (1861) 3 De GF & J 139, 45 ER 831.

70Eg Hodgson v. Marks [1971] Ch 892, 907F, 933A–B.

71Bernard v. Josephs [1982] Ch 391, 403E–F, Griffiths LJ; Cowcher v. Cowcher [1972] 1 WLR 425, 442C, Bagnall J.

72Bernard v. Josephs [1982] Ch 391, CA; Walker v. Hall [1984] FLR 126, CA; Springette v. Defoe [1992] 2 FLR 388.

73LPA 1925 s 53(1)(b).

74Robinson v. Robinson [1977] 1 EGLR 80, Div Ct; Gross v. French (1974) 232 EG 1319, 1321, Walton J; JT Farrand (1977) 41 Conv (NS) 78–79; K Gray [1983] CLJ 30.

75Pink v. Lawrence (1977) 36 P & CR 98, 101, Buckley LJ; Re Gorman [1990] 1 WLR 616, 623E–624B, Vinelott J; Roy v. Roy [1996] 1 FLR 541, CA.

76Walker v. Hall [1984] FLR 126, 129D, 136E (transfer May 1972).

a declaration about whether the survivor of the proprietors could or could not give a receipt for capital money.77 Definition of the legal capacity of a surviving proprietor was not necessarily deciding the beneficial capacity in which they held during their joint lives. In Huntingford v. Hobbs78 a transfer included the statement:

“The transferees hereby declare that the survivor of them can give a valid receipt for capital money arising on a disposition of the land.”

This was held not to be a valid declaration of beneficial joint tenancy, since the statement of legal capacity could be explained by other beneficial arrangements.79 and a resulting trust arose to reflect the unequal contributions. Many millions of joint transfer forms executed since 1974 were shown to be defective. Since 1997 a new land registry transfer form (TR1) has included a declaration that joint proprietors hold on trust for themselves as beneficial joint tenants or as tenants in common in equal shares or in some other capacity which they state.80 This solves the problem for the future.

3.Express declaration of trust conclusive

[16.14] An express declaration settles the form and extent of the beneficial interests,81 as between the parties to it,82 precluding any variation as a result of contributions or informal agreement.83 “The declaration contained in the document speaks for itself”, as Goodman v. Gallant84 shows. A husband and wife, who held as beneficial joint tenants, split up. The wife remained in the matrimonial home and later lived there with Gallant. Later still the husband conveyed the property to his ex-wife and Gallant “as beneficial joint tenants”. She fell out in turn with Gallant, and then argued that she was now entitled to three quarters of the equity – her original half plus half the equity transferred by her ex-husband. However, their entitlement was held to be equal, as stated in the express declaration. Barton v. Morris85 was an extreme illustration; a man who contributed £900 took an entire house costing £40,000 by survivorship under an express beneficial joint tenancy.

4.Express declaration conclusive as to quantification

[16.15] The written declaration of the trust should address the capacity in which coowners hold and, a separate though related issue, quantification of the beneficial

77TBF Ruoff (1975) 39 Conv (NS) 152.

78[1993] 1 FLR 736, CA; HE Norman [1992] Conv 347.

79Harwood v. Harwood [1991] 2 FLR 274, CA (parties husband, wife and partnership).

80LRR 1925 r 98, as substituted by SI 1997/3037; now DLRR 2003 sch 1.

81Pettitt v. Pettitt [1970] AC 777, 813 Lord Upjohn; Gissing v. Gissing [1971] AC 886, 905, Lord Diplock; Bernard v. Josephs [1982] Ch 391, 403C, Griffiths LJ; Lohia v. Lohia [2001] EWCA Civ 1691; Grindal v. Hooper [2000] Times February 8th, John Jarvis QC.

82City of London Building Society v. Flegg [1988] AC 54, HL (declaration between the Maxwell-Browns did not affect the contributing Fleggs); DJ Hayton [1986] Conv 131, 132; MP Thompson [1988] Conv 108, 109.

83Turton v. Turton [1988] Ch 542, 552C, Nourse LJ.

84[1986] Fam 106, 111A, Slade LJ; S Juss (1986) 45 CLJ 205. See also: Wilson v. Wilson [1963] 1 WLR 601; Re John’s Assignment T [1970] 1 WLR 955; Leake v. Bruzzi [1974] 1 WLR 1528; Pink v. Lawrence

(1977) 36 P & CR 98; Brykiert v. Jones (1981) 125 SJ 323, CA; Bernard v. Josephs [1982] Ch 391, 403, Griffiths LJ.

85[1985] 1 WLR 1257.

interests. Each party gets what has been promised,86 with no necessary relation to the financial contributions. One of two joint tenants receives a half,87 whether he has paid all, or nothing, or one half. Any outstanding mortgage debt is deducted from the proceeds of sale before a division of the equity.88

Judicial advice to declare the beneficial interests in writing is often ignored89 leaving beneficial entitlement to depend upon proof of a resulting or constructive trust.

5.Rectification

[16.16] An expressly declared trust may be undone by a successful claim for rescission, perhaps as a response to a misrepresentation,90 or may be corrected by rectification in a clear case91 so as to make the declaration of trust correspond,92 retrospectively,93 to the preceding informal arrangement,94 or a unilateral intention of the giver.95 In Gross v. French,96 a house was intended for a mother alone, but the transfer was made to herself, her daughter, and her son-in-law and included a mistaken declaration that all three were beneficial tenants in common. Rectification excluded those not intended to benefit. It will be too late to seek rectification once title has passed to a protected purchaser.

6.Words used

[16.17] Transfers invariably refer to “joint tenancy” or “tenancy in common” but wills commonly use informal words. They must be certain.97 Wills often define the size of the beneficial interests but not the capacity of joint beneficiaries. A tenancy in common is created by words of severance, indicating an intention to create undivided shares. Equity was so antagonistic to the joint tenancy that slight words swung the issue. Examples of words of severance are among, equally,98 equally to be divided,99 in

86Turton v. Turton [1988] Ch 542, 546F, Nourse LJ.

87Turton v. Turton [1988] Ch 542; J Montgomery [1988] Fam Law 72.

88Abbey National BS v. Cann [1991] 1 AC 56, 93A, Lord Oliver; Rodway v. Landy [2001] EWCA Civ 471, [2001] Ch 703, [21], Peter Gibson LJ.

89Gissing v. Gissing [1971] AC 886, 900H, Lord Diplock; Lloyds Bank v. Rosset [1991] 1 AC 107, 129C, Lord Bridge; Roy v. Roy [1996] 1 FLR 541, CA; Carlton v. Goodman [2002] EWCA Civ 545, [2002] 2 FLR 259, [44], Ward LJ.

90Invalidating a transaction but not giving effect to the intended gift: Gibbon v. Mitchell [1990] 1 WLR 1304, Millett J; Schnieder v. Mills [1993] 3 All ER 377.

91Joscelyne v. Nissen [1970] 2 QB 86, CA; Banks v. Ripley [1940] Ch 719, Morton J; Goodman v. Gallant [1986] Fam 106, 117B.

92Not if it already reflects their intentions: Roy v. Roy [1990] 1 FLR 541, CA.

93Malmesbury v. Malmesbury (1862) 31 Beav 407, 418, 54 ER 1196, Romilly MR.

94Joscelyne v. Nissen [1970] 2 QB 86, CA; Re Colebrook’s C [1972] 1 WLR 1397; Lake v. Lake [1989] STC 865.

95Whiteside v. Whiteside [1950] Ch 65, CA; Kemp v. Neptune Concrete [1989] 2 EGLR 87, CA (unsuccessful); Re Butlin’s ST [1976] Ch 251, 260–261.

96[1976] 1 EGLR 129, CA.

97Cowcher v. Cowcher [1972] 1 WLR 425, 430E.

98Morley v. Bird (1798) 3 Ves 628, 30 ER 1192.

99Rigden v. Vallier (1751) 3 Atk 731, 26 ER 1219, Lord Hardwicke.

equal shares,100 or on trust to divide,101 though a reference to a “share” was not by itself sufficient to sever.102

Wills and settlements often include inconsistent descriptions. Slingsby’s case applied an artificial presumption that the first words were taken in a deed (later words being repugnant) whereas the last words were taken in a will (being the testator’s last wish).103 Another solution is to treat a transfer containing irreconcilable expressions as if it was two deeds, the first passing property to the trustees as legal and equitable joint tenants, whereas the second effected an immediate severance by words to convert the beneficial interest to a tenancy in common. This was the result in Martin v.

Martin104 of the words on trust for themselves as beneficial joint tenants in common in equal shares.

G. THE FOUR UNITIES

1.Unities characteristic of beneficial joint tenancy

[16.18] Joint tenancy implies a holistic ownership, traditionally evidenced by the presence of the four unities of possession, interest, title, and time.105 Dissection of any tenancy in common will reveal the absence of one of the last three of these unities. Time is probably an illegitimate interloper, a question addressed in the context of settlements.106 It is best to rely on the two central requirements stated long ago in

Pullen v. Palmer:107

“tenants in common hold their lands either by several titles or by several rights, but joint tenants hold them by one title and one right.”

2.Absolute co-ownerships

[16.19] Absolute co-ownership arises where co-owners hold collectively for the duration of a legal estate. Joint tenancy must display one right, that is when all co-owners hold the same estate or interest in the property, as in:

to A and B in fee simple as beneficial joint tenants;

to A and B for a term of 80 years as beneficial joint tenants.

Common entitlement to a single estate gives rise to a joint tenancy so long as the stakes are equal. Unity of title is required, since the joint interest in the property must

100Brown v. Oakshot (1857) 24 Beav 254, 53 ER 355; Re North [1952] Ch 397; Re Davies [1950] 1 All ER 120, 123.

101Barclay v. Barclay [1970] 2 QB 677.

102Re Schofield [1918] 2 Ch 64; contrast Jones v. Jones (1881) 44 LT 642; Re Woolley [1903] 2 Ch 206, 210–211, Joyce J.

103(1587) 5 Co Rep. 18b, 19a, 77 ER 77; Joyce v. Barker Bros (Builders) (1980) 40 P & CR 512, 513; Martin v. Martin (1987) 54 P & CR 238, 243.

104(1987) 54 P & CR 238, 244, Millett J (the offending words in earlier cases were not in the habendum); JE Adams [1987] Conv 405; JE Martin [1988] Conv 57; also Cowcher v. Cowcher [1972] 1 WLR 425, 430H, Bagnall J.

105Blackstone’s Commentaries vol 2, 174.

106See below [18.07].

107(1693) 3 Salk 207, pl 155, 91 ER 780.