Published: Fri, 12 Oct 2018
Corin v Patton (1990) 169 CLR 540
Severance of joint tenancies and transfer of equitable interest in property.
Mr. Patton and Mrs. Patton were registered joint tenants of land. Mrs. Patton fell ill and, anticipating her death, decided to sever the joint tenancy from her husband and transfer her beneficial interest in the joint tenancy to her brother to hold on trust for her children. A solicitor drew up the relevant paperwork, and Mrs. Patton signed a transfer deed, yet Mrs. Patton passed away before she was able to procure the certificate of title for the property in order to register the memorandum of transfer. The memorandum of transfer, thus, remained unregistered.
The question arose as to whether the equitable title had been transferred and, accordingly, the joint tenancy severed, despite the fact that the memorandum of transfer was not registered.
The Court held that the overarching test for the transfer of equitable title was whether the party assigning the interest had done “all that was necessary” (para 16) in order to effect the said transfer. Intention was not sufficient to sever a joint tenancy. The question was not whether or not the transfer was registered, but rather whether it was in ‘registrable’ form and that the party had done all that was required for registration without any further act on the part of Mrs. Patton. On the facts of this case, Mrs. Patton had not sought the certificate of title from the mortgage at the bank and, thus, had not taken all the necessary steps to transfer the certificate of title to her brother and sever the joint tenancy. The Court also held that a statement of intention to transfer is not sufficient to effect a unilateral severance of joint tenancy. Accordingly, the Court held that the transfer was not effective and the joint tenancy was not severed.
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