Co-Ownership
Simon Spurgeon
Track/Slide 10
Having looked at some examples of the severance of a joint tenancy, we now need to look in more details at the various ways in which a joint tenancy can be severed. And we’ll start by looking at what is probably the simplest or easiest way of severing a joint tenancy today, by serving notice in writing on all the other joint tenants under s 36 2 of the Law of Property Act. The issue to be considered is how the notice should be served in order for it to be effective. As already mentioned, the notice must be served on all the other joint tenants or co-owners and under the provisions of s 196 ss 4 of the Law of Property Act, it should be served in a registered or recorded delivery letter to the last known place of abode or business of all the other joint tenants. The significance of adopting this method of service is that it would be irrelevant that the other joint tenants did not in fact receive knowledge of the notice. It will still be binding and the joint tenancy will be treated as having been severed.
This can be demonstrated from the facts of the case of Re 88 Berkeley Road where two joint tenants both occupied premises. One joint tenant served notice of severance on the other joint tenants by registered post under the provisions of s 196 ss 4. However, it became clear that when the registered letter was delivered, it was received and signed for by the joint tenant who had sent it and that it never actually came to the attention of the other joint tenant, the addressee. However, the courts held that as the requirements of s 196 ss 4 had been met, it still amounted to good service and that the joint tenancy had been severed. It should also be noted that, as well as sending notice of severance by registered or recorded post under s 196 4, it is also sufficient under 196 ss 3 of the Law of Property Act if a notice is left at or fixed to the last known abode or place of business of the other joint tenants. And we’ll see the operation of this when we look at the facts of the case of Kinch v Bullard.
In this case, a husband and wife were beneficial joint tenants in equity of the matrimonial home. In 1995 the wife started divorce proceedings against the husband, and, being aware that she was terminally ill, she also instructed her solicitor to serve a notice severing a joint tenancy on her husband because she did not want the right of survivorship to operate in favour of her husband when she died. The solicitor sent the notice by ordinary first class post on 3rd August. However, over the weekend of 5th-6th August the husband suffered a heart attack. Evidence was produced to show that the postman had delievered the letter by posting it through the letter box on either 5th or 7th August and that it was picked up by the wife who, by this stage had changed her mind about severing the joint tenancy. So she destroyed the letter and never gave it to her husband, the reason for her change of mind presumably being that if it transpired that her husband died before her, then if a joint tenancy was still in existence, under the rules of survivorship, the whole property would vest in her. The issue for the court to decide therefore was whether or not the delivery of the letter was effective to sever the joint tenancy. If it was, then on the husband’s death, his share in the property would pass to his executors under his will. If it was not, then under the rights of survivorship, the property would vest entirely in the wife on the husband’s death.
The first issue the court had to decide was whether the service was effective, having been sent by ordinary post rather than by registered or recorded delivery. The courts held that the fact of the postman posting the letter through the letterbox was sufficient to satisfy the criteria set out in s 196 ss 3, in other words, the notice had been left at the last known abode or place of business of the joint tenant. However, on a practical basis, this is a slightly risky approach to take as it relies on there being able to adduce evidence of the letter actually being delivered. As the delivery of the letter had satisfied the requirements of s 196 3, the courts held the fact that the husband was never aware of it did not matter and that there had been an effective severance of the joint tenancy. The fact that the wife had also by this stage changed her mind and had destroyed the letter again had no effect on the severance. This was because the wife’s change of mind was irrelevant because she could not withdraw the notice once it had been served, in other words once it had been posted through the letterbox. The courts held the severance took effect at the time of service, in other words when the postman posted the letter through the letterbox. It was accepted however, but only as obiter dicta that it may be possible in some circumstances for the notice to be withdrawn before it was served.
Another interesting case concerning the service of a notice of severance is Grindal v Hooper .Here the two joint tenants had agreed that any notice purporting to sever their joint tenancy would only be effective if it was annexed to or attached to the conveyance, under which they had purchased the property. One joint tenant did serve a notice but although the notice complied with the requirements of s 36 2 of the Law of Property Act, it was not attached to the conveyance. That joint tenant subsequently died and their beneficiaries claimed that there had been no valid severance in this instance because the notice had not been attached to the conveyance. The court however held that the agreement made between the joint tenants couldn’t displace the statutory effect of a rule set out in s 36 2 and that therefore the notice had validly severed the joint tenancy and that the parties had been tenants in common in equity from the point in which the notice was validly given.